llWl yniu\<'4'hi VviN * ' >»i^/ ?o 1^1 iilit iMi •^UUVMMm^S^ ^lOSAJJCfUf^ ^•UBRAIlY^k, ^OFCAIIFO^^ ^OfCAUFOM^ j*).i>(VMfln.i>!^ 7^ --* P I- 5 \^\[UNivniiyA ^^OJIWJiO'^ '^J'iUONVSO^^ ,5J\EUNIVERJ/A '^p?»nwcni>S^ ^lOSANCfl% SS ^lOSANCfU0> o ■ ^AOJIIVDJO'^ ^OFCAllFORj^ 3 ^UKAMCa^> \t4iBRARYQ<^ '^aojiiv>jo'>^ ^OFCAllFORi^ %aaAiNn-3Wv Ob O 3 uL ^lOSAHCn^^ ^(SOilTVDJO^ ^^Oiim-JO"^ ^mjONVSOV^^ %a3AiNn-3v«^^ . ^lOSANCfUf;> AOFCAUFOfti^, ^OFCAUFOi?^ /5A\FUNIVERS'/^ ^IOS-ANCCUTj^ I SO ^ '^mwm^ \4^i .^jAfUNIVERy/A. i o <^t-UBRARYQ<. ^^-UBRARY^^,, ^oim-i^"^ %mtNys[^ '^/smimi^ ^^aojiivojo'^ ^aojiivojo'^ ^\M!UNIVER% ^IDSANCFU-j-^ i/Or^i w > >j,OFCAllFOftj!^ ^.OFCAIIFO% ©1^1 iiinf|iM| „ _, iKvw"^ ■<^/?HiAiNrt?v^v' ■>'/?Aavn8iiA>^^ >'<^Jiav}iaiiv^^ ^hhikvw^ 1^ I I ^^^ TTZ I II '^^ ^^ I ^^^^^ ^P ^7^ IUVDJO"^ ^^OJUVJ-JO"^ CAUFO% ,^,OF■CALIF0«fe. r-«* uLl 11 I N'^ "^^oAaviiaiH^ ^rjuoNvsoi^^ ^). It is obvious that a single presumption may be conclusive, and that an accumulation of many presumptions may be of but little weight. The simplest and most elementary dictates of common sense require that presumptions should not be numbered merely, but that they should be weighed according to the principles which are applied in estimating the effect of testimonial evidence. In this connection we may remember what a dis- tinguished historian has said : " It can by no means be laid down as a general maxim that the assertion {ft) Deut. xvii. 6, xix. 15 ; Numb. xxxv. 30 ; 4 Michaelis Comment- aries on the Laws of Moses, by Smith, Art. ccxcix. "of Witnesses." {0) Code HoUandais, 1838; Code Penal d'Autriche ; Code de Baviere, and many other German Codes. {p) Code Criminel de Prusse, 1805 ; Code de Procedure Criminelle d'Autriche, 1853; ditto de Modene, 1855. PRESUMPTIONS. 31 of two witnesses is more convincinp^ to the mind than the assertion of one witness. The story told by one witness may be in itself probable. The story told by two witnesses may be extravagant. The story told by one witness may be uncontra- dicted. The story told by two witnesses may be contradicted by four witnesses. The story told by one witness may be corroborated by a crowd of cir- cumstances. The story told by two witnesses may have no such corroboration. The one witness may be a Tillotson or Ken. The two witnesses may be Oates or Bedloe " (^). The prevalence of these fallacious methods of judging of the force of evidence, explains the founda- tion of the practice, abhorrent alike to justice and common sense, of condemning to a minor punish- ment persons who may be innocent, but against whom there may exist apparent grounds of strong presumption, though not that exact kind and amount of proof which the rules of evidence arbitrarily and unreasonably require ; as if a middle term in criminal jurisprudence were not absurd and self-con- tradictory (r). An eminent foreign jurist well re- marks, that, ** Jamais il n'y a eu plus de condamna- tions injustes que sous I'enipire dune jurisprudence qui defendait de prononcer la peine capitale sur de simples indices " (s). (g) Macaulay, History of England, ch. xxii. (r) See several such cases in Narratives of Remarkable Criminal Trials, translated from the German of Feuerbach, by Lady Duff Gordon. A Berne, in 1842, a man accused of murder by poisoning was sentenced to six years' imprisonment, as vehcDientevicnt suspect. (j) Bonnier, Traite des Preuves, 2nd ed. 1852, p. 677, § 719. 32 CIRCUMSTANTIAL EVIDENCE. The unreasonable stress, which in many countries whose criminal procedure is derived from the Civil Law, is laid upon the confession of the accused, and the unwarrantable means which are resorted to in order to obtain it, are the natural results of arbitrary and unphllosophical rules of evidence, which neces- sarily have the effect of closing many of the channels of truth ; and frequently render it so difficult to obtain full legal proof of crime, that Anselm von Feuerbach.who was an eminent continental jurist and criminal judge, declared, many years ago, tliat unless a man chose to perpetrate his crimes in public, or to confess them, he need not fear a conviction (/). Attempts have been made by our own juridical writers, but with no useful result, to classify pre- sumptions in a more general way under terms ex- pressive of their effect, as violent or necessary, PROBABLE or GRAVE, and SLIGHT (?/). But this arrange- ment is specious and fanciful rather than practical and real ; nor is it entirely accurate, since a pre- sumption may be violent and yet not necessary (x). A more precise and intelligible classification of presumptions is into, violent or strong, and slight. But it is impossible thus to classify more than a (t) See Edinburgh Review, Ixxxii. (1845) at p. 330, and see in Christison on Poisons, 4th ed. p. 68, a German case where the crime of murder by poisoning was considered as not fully proved because the prisoner would not confess, but on account of the stronij probabihty of his guilt he was condemned to fifteen years' imprisonment. ill) Bentham's Rationale of Judicial Evidence, b. i. c. vi. s. 5 ; Coke on Litt. 6 b. ; 3 IJlackstone's Comm. b. vii. p. 371. {x) See Menochius De Prassumptionibus, Ub. i. q. 3, nos. i, 2, 3 ; Essai des Preuves, par Gabriel, 373 ; Best on Presumptions (1844), §§30 and 31, p. 37. PRESUMPTIONS. 33 comparatively few of the infinite variety of circum- stances connected with human actions and motives, or to lay down rules for distinguishing presumptions of one of these classes from those of another; and the terms of designation, from the inherent imperfections of language, although not wholly destitute of utility, are unavoidably defective in precision. We can therefore only usefully apply these epithets as rela- tive terms ; and the effect of particular facts must of necessity depend upon the reality and closeness of the connection between the principal and secondary facts, and upon a variety of considerations peculiar to each individual case, and can no more be pre- dicated than the bou.idaries can be defined, of the separate colours which form the solar spectrum. It is convenient, and may be advantageous even, in order to obtain a comprehensive view of the ten- dencies and effect of a number of circumstances, to group them together in their chronological relation to the factum probandum, as antecedent, concomi- tant, and subsequent; but to require the concurrence of these several kinds of presumption, as in the Bavarian criminal code of 1813, is an outrage upon all legal and philosophical principle (^'). By various statutes, many acts are made legal presumptions of guilt, and the onus of proving any matter of defence is expressly cast upon the party accused ; but, with these exceptions, the truth of every accusation is determined by the voice of a ij) Bonnier, Traite des Preuves, 2nd ed. 1852, p. 683, § 727 ; Trait6 He la Preuve, par Mittermaier (traduit par Alexandre), c. 61. C.E. D 34 CIRCUMSTANTIAL EVIDENCE. tribunal, upon consideration of the intrinsic and independent merits of each particular case, acting upon those principles of reason and judoment by which mankind are governed in all other cases where the same intellectual process is called into exercise, unfettered by any obligatory and inflexible presumptions. The inexpediency and inefficacy of positive presumptions, as indications of the criminality of intention, in which alone consists the essence of legal guilt, have been thus exposed with equal force and elegance by the hand of a master : — " The con- nection of the intention and the circumstances, is plainly of such a nature, as more to depend on the sagacity of the observer than on the excellency of any rule. The pains taken by the civilians on that subject have not been very fruitful ; and the English law-writers have, perhaps as wisely, in a manner abandoned the pursuit. In truth, it seems a wild attempt to lay down any rule for the proof of intention by circumstantial evidence " (z). Section 3. relative value of direct and indirect or circumstantial evidence (a). The foregoing observations naturally lead to a comparison of the relative value of Direct and In- direct or Circumstantial Evidence ; an inquiry which (2) Burke's Works : for reference see p. 25, supra, at place there cited. («) The whole subject of this chapter is admirably discussed in Wharton on Criminal Evidence, 9th ed. 1884, ch. i. DIRECT AND CIRCUMSTANTIAL EVIDENCE. 35 becomes the more necessary, on account of some novel and questionable doctrines which have received countenance even from the judgment-seat. The best writers, ancient and modern, on the subject of evidence, have concurred in treating circumstantial as inferior in cogency and effect to direct evidence ; a conclusion which seems to follow necessarily from the very nature of the different kinds of evidence. But language of a directly contrary import has been so often used by authorities of no mean note, as to have become almost proverbial, and to require examination. It has been said that " circumstances are inflexible proofs. They will not bend to the inclinations of parties. Witnesses may be mistaken — may be corrupted ; things can be neither ; and therefore, so far as they go, deserve unlimited, unreserved faith " {b). '* Circumstances," says Paley, " cannot lie"(^). It is astonishing that sophisms like these should have passed current without animadversion. The '^ circumstances " are assumed to be in every case established beyond the possibility of mistake ; and it is implied, that a circumstance established to be true possesses some mysterious force of its own, special in its nature and essence. Now, a circumstance is neither more nor less than a minor fact, and it may be admitted of all facts, that they cannot lie ; for a fact cannot at the same time exist and not exist : so that in truth, the doctrine is merely the expression {b) Burnett's Criminal Law of Scotland (181 1), 523, footnote. (. State, 89 Ind. 133 ; Weinecke v. State, 34 Neb. 14 ; Tinney v. State, 1 1 1 Ala. 74 ; State v. Benson, 22 Kan. 471; State v. Hill, 98 Mo. 357; Abrigo v. State, 29 Tex. App. 143. But see Franklin v. State, 64 Tenn, 613. Proof that an offence was committed in the witness's house and that the house is in a certain place is sufficient proof of venue. Porter v. People, 158 111. 370. But it is not enough to show that the owner of a certain saloon that had been broken into lives in a certain place, and that he owns the saloon building. The venue of the building must be shown. Harlan v. State, 134 Ind. 339. No presumption that a homicide occurred in a certain county is raised by proof that the inquest was held there. Dobson v. State, 17 S. W. 3. Sources of Circumstantial Evidence. " This indirect evidence is sometimes drawn from the expe- rience which enables us to trace a connection between an ascer- tained collateral fact and the fact otlierwise undetermined ; and it is more or less cogent as this connection is known to be more AMERICAN NOTES. 46 171 or less natural and frequent. When antecedent experience shows this mutuality of relation to be constant or with a great degree of uniformity, the inference deducible, it is said, is properly termed a presumption. But this species of proof embraces a far wider scope than this. It in fact includes all evidence of an indirect nature, whether the inferences afforded by it be drawn from prior experience or be a deduction of reason from the cir- cumstances of the particular case, or of reason aided by expe- rience. In the latter aspect is a conclusion the value of which obviously depends on the force and directness with which it is derived from the premises concealed or proved." Stevenson v. Stewart, 11 Pa. 308. Classification of Ctraifnstantial Evidence. "The relations and coincidences of facts with each other, from which reasonable inferences may be drawn, are some of a physical or mechanical, and others of a moral, nature. Of the former, some are so decisive as to leave no doubt ; as, where human footprints are found on the snow, the conclusion is certain that a person has passed there ; because we know, by experience, that that is the mode in which such footprints are made. A man is found dead, with a dagger-wound in his breast ; this being the fact proved, the conclusion is, that his death was caused by that wound, be- cause we know that it is an adequate cause of death, and no other cause is apparent. . . . " These are cases where the conclusion is drawn from known relations and coincidences of a physical character. But there are those of a moral nature, from wnich conclusions may as legiti- mately be drawn. The ordinary feelings, passions, and propensi- ties under which parties act are facts known by observation and experience; and they are so uniform in their operation that a con- clusion may be safely drawn, that if a person acts in a particular manner he does so under the influence of a particular motive." Shaw, C. J., in Com. v. Webster, 5 Cush. 295, 314. '• A third basis of evidence is the known and experienced con- nection subsisting between collateral facts or circumstances, satis- factorily proved, and the fact in controversy. This is merely the legal application, in other terms, of a process familiar in natural philosophy, showing the truth of an hypothesis by its coincidence 46 ;/ AMERICAN NOTES. with existing phenomena. The connections and coincidences to which we refer may be either physical or moral ; and the knowl- edge of them is derived from the known laws of matter and mo- tion, from animal instincts, and from the physical, intellectual, and moral constitution anil habits of men. Their force depends on their sufficiency to exclude every other hypothesis but the one under consideration." Greenleaf on Kvid. i6 ed. § ii. Professor Wigmore classifies circumstantial evidence by first dividing facta probanda into three groups : I. A Human Act ; II. A Human Quality, Condition, or State; III. A Fact or Con- dition of External Nature ; and then arranging the evidentiary facts into — A. Prospectant ; B. Concomitant ; C. Retrospectant. Under A. are classified Character, Design, Motive, etc., pointing as they do to future acts. An alibi is placed under B. ; and Con- sciousness of Guilt under C, since from it a past act is to be inferred. Wigmore on Evidence, § 43. CHAPTER III. INCULPATORY MORAL INDICATIONS. Although, for reasons which have been explained, a complete enumeration of facts as invariably con- joined with authoritative presumptions would be impracticable, it is important, in illustration of the general principles which determine the relevancy and effect of circumstantial evidence, to notice some particulars of moral conduct, frequently brought to light in courts of criminal jurisdiction, which are both popularly and judicially considered as leading to important and well-grounded presumptions These circumstances may be considered under the heads of motives to crime, declarations or acts indica- tive of guilty consciousness or intention, preparations for the commission of crime, possession of the fruits of crime, refusal to account for appearances of sus- picion, or unsatisfactory explanations of such appear- ances, evidence indirectly confessional, the suppression, destruction, simulation, and fabrication of evidence, statutory presumptions, and scientific testimony. Section i. motives to crime. As there must pre-exist a motive to every volun- tary action of a rational being, it is proper to comprise in the class of moral indications, such particulars of external relation as are usually observed 48 INCULPATORY MORAL INDICATIONS. to operate as inducements to the commission of crime, as well as such indications from language and conduct as mc^re directly and unequivocally manifest a connection between the deed and the mind of the actor. In strictness the word "motive," though popularly applied to denote the objects calculated to act on the mind, ought to be limited to the desig- nation of such objects only as have actually influenced the will, and have thus been the efficient causes of moral action. The metaphorical origin of this word has given rise to serious misconception as to the nature of moral and legal responsibility, upon which it is essential that our conceptions should be accurate. From its primary application to material force, an imaginary analogy has been supposed between the action of moral and physical agencies. In reality, however, there is no resemblance between the definite constraint of mechanical power and the influence of motives on the self-oriijinatino- will of an intelligent and free agent. Man is not the passive subject of necessity or chance ; nor are his moral judgments merely the abstractions of logic : on the contrary, he is endowed with instincts, passions, and affections, and above all with reason, and the capacity of estimating the qualities and tendencies of his volitions and actions, and with the power of choosing from among the various induce- ments, emotional and rational, which are presented to him, the governing principles of his conduct (a). {a) 6 Stewart's collected Works, 349 ; Cousin, Cours de I'Hist. de la Philosophic, prem. ser. tome 4, Le$on xxiv. MOTIVES TO CRIME. 49 These considerations constitute the foundation of moral and legal responsibility ; and it follows from them, that in all their important actions we naturally, reasonably, and safely judge of men's motives by their conduct, as we conclude from the nature of the stream the qualities of its source. It is indispensable, therefore, in the investigation of imputed guilt to look at all the surrounding circumstances which con- nect the actor with other persons and things, and may have operated as motives and influenced his actions. The common inducements to crime are, the desire of revenofingf some real or fancied wrono- ; of cfettinof rid of a rival or an obnoxious connection ; of escap- ing from the pressure of pecuniary or other obli- gation or burden ; of obtaining plunder or other coveted object ; of preserving reputation, either that of general character or the conventional reputation of profession or sex ; or of gratifying some other selfish or malignant passion. But it is of the essence of moral weakness that it forms a mistaken estimate of present good, and a want of proportion will there- fore of necessity be found between the objects of desire and the means employed to obtain them. The assassin's dagger may be put in requisition for a few pieces of gold, and the difference between that and other inducements to crime is a difference only of degree. In a sense indeed, and tried by the standard of absolute morality, there can be no such thing as an adequate motive to the commission of crime. It is always a satisfactory circumstance of cor- roboration when, in connection with convincing facts C.E. E 50 INCULPATORY MORAL INDICATIONS. of coiKluct, an apj)arcnt motive can be assigned ; hut, as the operations of the mind are invisible and intanL^il)le, it is impossible to g"o further; and it must be remembered that there may be motives which no human being but the party himself can divine. Nor must undue importance be attached to external circumstances supposed to be indicative of g'lilty motive, for there are fttw men to whom some or other of the forms of crime may not apparently prove advantageous. Neither ought the existence of such apparent inducements to supersede the necessity for the same amount of proof as would be deemed necessary in the absence of all evidence of such a stimulus. Suspicion, too readily excited by the appearance of supposed inducement, is incom- patible with that even and unprejudiced state of mind which is indispensable to the formation of correct and sober judgment. While true it is, that frequently " imputation and strong circumstances . . . lead directly to the door of truth," it is equally true that entirely to penetrate the mind of man is out of human power, and that circumstances which apparently have presented powerful motives, may never have acted as such. Who can say that some " uncleanly apprehension," some transient thought of sinister aspect, in the dimness of moral light momentarily mistaken for good, may not floac un- bidden across the purest mind ? And how often is it that man has no control over circumstances of apparent power over his motives .'* It follows from the foregoing remarks, that evidence of collateral facts which may appear to MOTIVES TO CRIME. 5I have presented a motive for a particular action de- serves pel" se no weight. With motives merely, the legislator and the magistrate have nothing to do ; ACTIONS, AS THE OBJECTS OR RESULTS OF MOTIVES, are the only legitimately cognizable subjects of human laws. Actus 11071 facit reiim nisi mens sit rea, is a maxim of reason and justice not less than of positive law (d). Motives and their objects differ, it has been remarked, as the springs and wheels of a watch differ from the pointing of the hour, being mutually related in like manner {c). But such evidence is most pertinent and important when clearly connected with declarations which demonstrate that the particular motive has passed into action, or with inculpatory moral facts which it tends to explain and co-ordinate, and which would otherwise be inexplicable. The particulars of external relation and moral conduct will in general correctly indicate the character of the motive in which they have originated. On the other hand, the entire absence of surrounding circumstances, which on the ordinary principles of human nature may reasonably be sup- posed to have acted as an inducing cause, is justly regarded, whenever upon the general evidence the imputed guilt is doubtful, as affording a strong pre- sumption of innocence. It occasionally happens that actions of great {b) 3 Inst. 107. For a discussion of the meaning and extent of this maxim, see Reg. v. Tolsoft, 23 Q. B. D. 168. See Uifra, pp. 1 3 1 - 1 36. As to the use of the word motive in this passage, see note at p. 45, supra. {f) Hampden's Lectures on Moral Philosophy, 241. E 2 52 INCULPATORY MORAL INDICATIONS. enormity are committed, for wliich no apparent motive is discoveraMe. It must not be concluded, however, that no pre-existent motive has operated ; and upon principles of reason and justice essential to common security, the actor is held to be legally accountable for his actions, unless it be clearly and indubitably shown that he is bereft of reason and moral power. A sense of injury, and long-cherished feelings of resentment, may ultimately induce a state of mind independent of self-restraint, and render their victim the sport of ungovernable im- pulses of passion [d) ; but the distinction is evident and just between such actions as are the conse- quences of a voluntary abdication of moral control, and actions committed under the over-mastering power of a delusion of the imagination, which, though groundless, operates upon the mind with all the force of reality and necessity (e). On a trial for murder. Lord Chief Justice Camp- bell thus summed up the doctrine under discussion : " With respect to the alleged motive, it is of great importance to see whether there was a motive for committing such a crime, or whether there was not ; or whether there is an improbability of its having been committed so strong as not to be overpowered {d) Rex V. Earl Ferrers, ig St. Tr. 885. If the confession of Constance Kent (_Ann. Reg. 1865, p. 230) be accepted, Jier only motive for the dehberate murder of her infant half-brother was a desire to revenge some slighting remarks made by her stepmother as to the first family. She acknowledged that she had received the greatest kindness from her stepmother. ( (/) Reg. V. Palmer., Shorthand Report at p. 308. Central Criminal Court, May, 1856. The details of the case are set out at length, infra., pp. 344-351. As to the use of the word motive in this, the next and some later passages, see note at p. 45, supra. {g) Rex V. Farringion, R. & R. at p. 207 ; Rex v. Harvey, 2 B. & C. 257 ; Rexv. Dixon, 3 M. & S. 11. {h) Bacon's Maxims of the Law, Regula xv. (Bacon's Works, edited by Spedding, Ellis and Heath, 1859, vol. vii.). 54 INCULPATORY MORAL INDICATIONS. consummation and issuing in some particular fact, which though it be not the fact at which the intention of tlie malefactor levelled, yet the law giveth him no advantage of the error, if another particular ensue of as high a nature. Therefore if an im- poisoned apple be laid in a place to impoison I. S., and I. D. cometh by chance and eateth it, this is murder in the principal, that is actor, and yet the malice in individuo was not against I. D. "(z). " In capital causes," declares the same high authority, " in favorem vitcB, the law will not punish in so high a degree, except the malice of the will and intention do appear " {k). But nevertheless the rule under discussion has been extended beyond all reasonable application, as where two persons were convicted of lying in wait and slitting the prosecutor's nose with intent to maim and disfigure, an offence then capital by the statute 22 & 23 Car. II. c. i, though the real intention was to commit murder, in order to obtain an estate, an offence not capital, and there v/as no such special intent as the statute re- quired (/) ; a case which, as extending a criminal law by equity, is inconsistent with the general principles of jurisprudence, and with the spirit of many later cases (w). (J) Bacon, ib. Regula xv. {k) Id. Regula vii. (/) Rex V. VVoodburne and Coke, 16 St. Tr. 54. (;«) 4 Lord Campbell's Lives of the L. Ch. 601 ; Rex v. Bell, Foster's Discourses on the Crown Law, 3rd ed. 1792, App. p. 430; Rex V. Carroll, East, P. C. 394, 397, 398, 400, 402 ; Rex v. Duffin, R. & R. 365. guilty consciousness or intention. 55 Section 2. declarations and acts indicative of guilty consciousness or intention. It is very common with persons who have been engaged, or are about to engage, in crime, to make obscure or mysterious allusion to their criminal acts or purposes, or to boast to others whose standard of moral conduct is the same as their own, of what they have done or will do, or to give vent to expres- sions of revengeful feelinors or of malio-nant satisfac- tion at the accomplishment or anticipated occurrence of some serious mischief. Such declarations or allusions are of great moment when clearly connected by independent evidence with some anterior or subsequent criminal action. When an act is of such a nature as not necessarily to imply a guilty intention, and such intention is the specific point in issue, then the evidence of decla- rations by the party, or of collateral circumstances, may be of the last importance, as explanatory of his motives and purposes. " Declarations referring to former and existing facts," said Lord Chief Justice Eyre, "are the explanation and connection of those facts which serve to make them intelligible. . . . According to the rules of evidence, what a prisoner has said respecting a particular fact is admissible evidence, not in the nature of a confession, but as evidence of the particular fact ; and it is therefore agreeable to the general law of evidence to receive such declarations in all cases whatever, in order to explain and to 56 INCUI.rATORV MORAL INDICATIONS. establish tlu; true st.ite of any matter of fact which is in disi)uic or the subject of inquiry before a jury" {n). The just effect of such language in reference to future events is to show the existence of the disposi- liou, from which criminal actions proceed, to render it less improbable that the person proved to have used it would commit the particular offence, and to explain, if it be in itself ambiguous, the motive or object of the contemplated action. But evidence of such language cannot dispense with the obligation of sufficient proof of the criminal facts ; for, though malignant feelings may possess the mind, and lead to intemperate and criminal expressions, they never- theless may exercise but a transient influence without leading to action (er se to put him upon showing how he came by them {y) ; and where a stolen horse was found in the prisoner's possession six months after it was lost, Mr. Justice Maule held that this was no case to go to the jury [z). But in another case, where three sheets were found upon the prisoner's bed in his house three months after they had been stolen, Mr. Justice Wightman held that the case must go to the jury, on the ground that it was impossible to lay down any rule as to the precise time which was too great to call upon the prisoner to account for the possession {a) ; and where seventy sheep were put upon a common on the i8th of June, but not missed until November, and the prisoner was proved to have had possession of four of them in October, and of nineteen more on the 23rd of November, the judge allowed evidence of the possession of both to be given [b). 2. It is obviously essential to the just application of this rule of presumption, that the house or other place in which the stolen property is found should be in the exclusive possession of the prisoner. (a) Rex V. Cruttenden, Best on Presumptions (1844), p. 306 ; 6 Jurist, 267. (/) Rex V. Adams, 3 C. & P. 600. \z) Reg. V. Cooper, 3 C & K. 318, {a) Rex V. Hewlett, 3 Russell on Crimes, 6th ed. p. 355, note (a). {p) Rex V. Dewhirst, 2 Starkie on Ev. 3rd ed. p. 614. 72 INCULPATORY MORAL INDICATIONS. Where it is founcl in the apartments of a lodger, for instance, the presumption may be stronger or weaker, according as the evidence does or does not show an exclusive possession. As a general rule, where stolen goods are found in the house of a married man, they must be considered in his posses- sion, and not in the possession of his wife, unless there be evidence of something specially to implicate her, such as statements made, or acts done by her, in which case it must be left to the jury to decide in whose possession they were {c). Therefore, where a wife was indicted with her husband for receiving stolen property, and it appeared that she had destroyed the property, it was held to be a question for the jury whether she had so dealt with it, to aid her husband in turning it to profit, or merely to con- ceal his guilt, or screen him from the consequences (d). And where, upon the trial of a man for receiving stolen tin, it was objected that evidence to prove that his wife was seen carrying tin under her cloak from a warehouse on the premises immediately after his arrest, ought not to be received, as the possession was the personal possession of the wife, and ought not to affect the husband, Mr. Justice Coleridge held that it was for the jury to consider whether the wife's was not the prisoner's possession, she being upon the premises, and all the circumstances being taken into consideration, and that it was not like the case where the wife is in possession of stolen property at a distance from the premises of her husband {e). {c) Reg. V. Batiks, i Cox, C. C. 238. {d) Reg. V. iWClarens, 3 Cox, C. C. 425 ; and Reg. v. Brook, 6 ib. 148. {e) Reg. V. Mansfield, Car. & M. 140. RECENT POSSESSION OF THE FRUITS OF CRIME. "^ }^ 3. The force of this presumption is greatly in- creased if the fruits of a plurality or of a series of thefts be found in the prisoner's possession, or if the property stolen consist of a number of miscellaneous articles, or be of an uncommon kind, or from its value or other circumstances, be inconsistent with or unsuited to the station of the party. On the trial of two men at Aberdeen autumn circuit, 1824, it appeared that a carpenter's workshop at Aberdeen was broken open on a particular night, and some tools carried off, and that on the same night the counting-houses of Messrs. Davidson and of Messrs. Catto and Co., in different parts of that city, were broken into, and goods and money to a considerable extent stolen. The prisoners were met at seven on the follovvinor morninor in one of the streets of Aber- deen, at a distance from either of the places of depredation, by two of the police. Upon seeing the officers they began to run ; and being pursued and taken, there was found in the possession of each a considerable quantity of the articles taken from Catto and Co., but none of the things taken from the carpenter's shop or Davidson's. But in Catto and Co.'s warehouse were found a brown coat and other articles got from Davidson's, which had not been there the preceding evening when the shop was locked up ; and in Davidson's were found the tools which had been abstracted from the carpenter's. Thus, the recent possession of the articles stolen from Catto and Co.'s proved that the prisoners were the depredators in that warehouse ; while the fact of the articles taken from Davidson's having been left there, connected them with that prior housebreaking ; 74 INCULPATORY MORAL INDICATIONS. and a,L;ain, the chisels belonging to the carpenter's shop, found in Davidson's, identified the persons who broke into that last house with those who com- mitted the original theft at the carpenter's. The prisoners were convicted of all tlie thefts (/). A still stronger case of the same kind occurred at Aberdeen, in April, 1826, on the trial of a man who was accused of no fewer than nine different acts of theft by housebreaking, committed in and around that place at various times during the summer of 1825 and the following winter. No suspicion had been awakened against the prisoner, who was a carter, living an industrious and apparently regular life, until one occasion, when some of the stolen articles having been detected in a broker's shop, and traced to his custody, a search was made, and some articles from all the houses broken open found amongst an immense mass of other goods, evidently stolen, in a large chest, and about various parts of the prisoner's house. Their number and variety, and the place where they were found, were quite sufficient to convict him of receiving the stolen property ; but as they were discovered at the dis- tance of many months from the times when the various thefts had been committed, the difficulty was how to connect him with the actual theft. The charsfes selected for trial were five in number, and as nearly connected with each other in point of time as possible. In none of them was the prisoner identified as the person who had broken into the (/) Rex V. Dow7iie and Milne, Alison's Principles of the Criminal Law of Scotland, vol. i. p. 313; 2 Mascardus De Probationibus, Concl. DCCCXXXI. RECENT POSSESSION OF THE FRUITS OF CRIME. 75 houses, although the thief had been seen, and more than once fired at ; but in all the first four house.s which had been broken into, were discovered some of the articles taken from the others, and in the prisoner's custody were found some articles taken from them all, which sufficiently proved that all the depredations had been committed by one person ; and the mark of an iron instrument was found on three of the windows broken open, which coincided exactly with a chisel left in the last house. Two days after the housebreaking of that house, an old watch, part of ihe stolen property, was shown by the prisoner to a shopkeeper, to whom he soon afterwards sold it, and by him delivered up to the officers. Upon this evidence the prisoner was convicted of all the charges of housebreaking (^). 4. The recent possession of stolen property may sometimes be referable not to the crime of theft, but to that of having received it with a guilty knowledge of its having been stolen. Four persons v/ere found guilty of housebreaking on proof of the recent pos- session of the goods, and narrowly escaped execution, the offence at that time being capital, but it was afterwards ascertained that one of them, who had long been known as a receiver of stolen goods, knew nothing of the robbery until after it had been com- mitted, and had purchased .the goods from the real thieves the day after the robbery iji). The difficulty {g) Rex V. Bowman^ Alison's Principles of the Cr minal Law of Scotland, vol. i. p. 314. According to Scotch law, several offences — • not necessarily of the same character — could be included in the same libel. See Alison, vol. ii. p. 23S. (ti) Rex V. Ellis, Ann. Reg. 1831 (Chr.), p. 65. ^6 INCULPATORY MOKAL INDICATIONS. of rcfcrriiiL]^ tlic act of possession specifically to either stealing; or receiving frequently led to the failure of justice ; thus, where stolen goods were found shortly after the theft concealed in an old engine-house, and the place being watched, the prisoners were seen to go there; and take them away, yet, being indicted as receivers, they were acquitted ; Mr. Justice Patteson beinc^ of opinion that this- seemed to be evidence rather of a stealing than a receiving (2). These dis- tinctions can seldom now lead to a failure of justice, since by 24 & 25 Vict. c. 96, s. 92 (following an earlier statute), counts for stealing and receiving the same property may be joined in one indictment in respect of the same offence. It is not necessary that the receiver of stolen pro- perty should have obtained a guilty knowledge by direct information ; it is sufficient if the circumstances under which it was received were such as must have satisfied any reasonable mind that it must have been dishonestly obtained ; as, if he purchased it at an undue value {k), at suspicious and unseasonable times, or from persons who in the ordinary course of things could not fairly be considered as the unsus- pected owners of property of ihe particular descrip- tion, or has secreted or endeavoured to secrete it, or attempted to explain the manner of acquisition by falsehood or prevarication (/). (?) I^ex V. Densley^ 6 C. & P. 399 ; and see Rex v. Dyer, 2 East, P. C. 767 ; and Rex v. Atwell, ib. 76S. (/&) Hale's P. C, vol. i. p. 619. (/) See Alison's Principles of the Criminal Law of Scotland, vol. i. RECENT POSSESSION OF THE FRUITS OF CRIME. 77 5. The possession of stolen goods recently after the loss of them, may be indicative not merely of the offence of larceny, or of receiving- with guilty knowledge, but of any other more aggravated crime which has been connected with theft. Upon an indictment for arson, proof that property which was in the house at the time it was burnt, was soon after- wards found in the possession of the prisoner, was held to raise a presumption that he was present and concerned in the offence (w). This particular fact of presumption commonly forms also a material element of evidence in cases of murder ; which special application of it has often been emphatically recognized. It is upon the same principle that a sudden and otherwise inexplicable transition from a state of indigence and a consequent change of habits, or a profuse or unwonted expenditure inconsistent with the position in life of the party, is sometimes a circumstance extremely unfavourable to the sup- position of innocence («). 6. But the rule must be applied with discrimination, for the bare possession of stolen property, though recent, uncorroborated by other evidence, is some- times fallacious and dangerous as a criterion of guilt. Sir Matthew Hale lays it down, that " if a horse be stolen from A., and the same day B. be found upon him, it is a strong presumption that B. stole him ; yet," adds that excellent lawyer, " I do remember (;«) Rex V. Rickinan, 2 East, P. C. 1035 ; and see Rex v. Fuller, R. & R. 308. («) Rt-x V. Burdock (murder by poison), Bristol Ass. Ap. \2>2,$,cor. Sir Chas. Wetlierell, Recorder. 78 INCULPATORY MORAL INDICATIONS. before a learned and very wary judge, in such an instance B. was condemned and executed at Oxford Assi/.es, and yet within two assizes after, C, being ai)ijrehcnded for another robbery, and convicted, upon his judgment and execution confessed he was the man that stole the horse, and being closely pur- sued, desired B., a stranger, to walk his horse for him, while he turned aside upon a necessary occa- sion, and escaped ; and B. was apprehended with the horse and died innocently " {0). A very similar case occurred at the Surrey Summer Assizes, 1827, where a young man was convicted of stealing two oxen. The prisoner, having finished his apprenticeship to a butcher at Monkwearmouth, went to visit an uncle at Portsmouth, from whence he set out to return to London. On the road between Guildford and London, about three o'clock in the morning, he overtook a man riding upon a pony and driving two oxen, who finding that he was going to London, offered him five shillino^s to drive them for him to London, which he agreed to do, the man engaging to meet him at Westminster Bridge. At Wands- worth he was apprehended by the prosecutor's son, and charged with stealing the oxen. On his appre- hension he assumed a false name, under which he was tried, to conceal his situation from his friends, and convicted, but on a representation of the circum- stances he received a pardon, when on the point of being transported for life (/) ; he had been the dupe of the real thief, who, finding himself closely pursued, {o) 2 Hale, p. C. p. 289. {p) /vex V. Cz7/, O.B. Sessions Papers and Ann. Reg. 1827 (Chr.), p. 179. KECENT POSSESSION OF THE FRUITS OF CRIME. 79 had thus contrived to rid himself of the possession of the cattle. 7. The rule under discussion is occasionally attended with uncertainty in its application, from the difficulty attendant upon the positive identification of articles of property alleged to have been stolen ; and it clearly ought never to be applied, where there is reasonable ground to conclude that the witnesses may be mistaken, or where from any other cause identity is not satisfactorily established. But the rule is nevertheless fairly and properly applied in circumstances where, though positive identification is impossible, the possession of the property cannot without violence to every reasonable hypothesis but be considered of a guilty character; as in the case of persons employed in carrying tea, sugar, tobacco, and other like articles from ships and wharves. Cases have frequently occurred of convictions of larceny, in such circumstances, upon evidence that the parties were detected with property of the same kind upon them recently after coming from such places, although the identity of the property as belonging to any par- ticular person could not otherwise be proved [q). On this principle two men were convicted of larceny upon evidence that the prosecutor's soap-manufac- tory, near Glasgow, had been broken into in the night and robbed of about 120 lbs. of yellow soap, and that the prisoners were met on the same night, about eleven o'clock, by the watchman, near the centre of the city, from whom they attempted to escape, one bearing on his back forty pounds of soap ig) 2 East, P. C. 1035. 80 INCULPATORY MORAL INDICATIONS. of the same size, shape, and make as that stolen from the prosecutor's premises, and the other with his clothes soiled over with the same substance, though the property could not be more distinctly iden- tified {;■). It is seldom, however, that juries are required to determine upon the effect of evidence of the mere recent possession of stolen property ; from the very nature of the case, the fact is generally accompanied by other corroborative or explanatory circumstances of presumption. If the party have secreted the property, — if he deny that it is in his possession, and such denial be discovered to be false, — if he cannot show how he became possessed of it, — if he give false, incredible, or inconsistent accounts of the manner in which he acquired it, as that he found it, or that it had been given or sold to him by a stranger, or left at his house, — if he have disposed of or attempted to dispose of it at an unreasonably low price, — if he have absconded or endeavoured to escape from justice, — If other stolen property, or housebreaking tools, or other instruments of crime be found in his possession, — if he were seen near the spot at or about the time when the act was com- mitted, — or if any article belonging to him be found at or near the place where the theft was committed, at or about the time of the commission of the offence, — if the impressions of his shoes or other articles of apparel correspond with marks left by the thieves, — if he have attempted to obliterate from the articles in question marks of identity, or to tamper with the parties or the officers of justice, — these, and all like (r) AV.r V. M'-KecJmie and Tolmie^ Alison's Principles of the Criminal Law of Scotland, vol. i. p. 322. UNEXPLAINED APPEARANCES OF SUSPICION. 8l circumstances, are justly considered as throwing light upon and explaining the fact of possession, and render it morally certain that such possession can be referable only to a criminal origin, and cannot otherwise be rationally accounted for [s). Section 5. unexplained appearances of suspicion, and at- tempts to account for them by false repre sentations. As a general rule, to which the exceptions can be but rare, it is a reasonable conclusion, that an innocent party can explain suspicious or unusual appearances, connected with his person, dress or conduct ; and that the desire of self-preservation, if not a regard for truth, will prompt him to do so. The ingenuous and satisfactory explanation of cir- cumstances of apparent suspicion always operates powerfully in favour of the accused, and obtains for him more ready credence when the explanation may not be easily verified (/). On the other hand, the force of suspicious circumstances is augmented, whenever the party attempts no explanation of facts which he may reasonably be presumed to be able and interested to explain. An old man on his way home from market, where he had stayed late, was attacked, thrown down, and robbed by three men, one of whom he wounded in the struggle with (s) Upon the subject-matter of this section compare Roscoe's Criminal Evidence (12th ed.) pp. 17 and 783, and Russell on Crimes (6th ed.) vol. ii. pp. 287 e/ seq. and vol. iii. pp. 355 et seq (/) See the case oi Reg. v. Pook, pp. 250-252, infra. C.E. G 82 INCULPATORY MORAL INDICATIONS. a clasp-knife. Upon the apprehension of one of the robbers at the house of his mother, he was dressed in a new pair of trousers, and the constable found in a room upstairs, between the bed and the mattress, a pair of trousers with two long cuts in one thiL;h, one of which had penetrated through the lini^L,^ and was stained with blood at that spot ; and the holes had been sewed with thread which was not discoloured, showing that the blood must have been applied to the cloth previous to the repair, and a corresponding cut bound over with plaisters was found on the prisoner's thigh. He refused to give any explanation of the wound or of the cuts in the garments, and was convicted and transported [it). But circumstances of suspicion merely, without more conclusive evidence, are not sufficient to justify conviction, even though the party offer no explanation of them. Two women were indicted for colouring a counterfeit shilling and sixpence, and a man as an accessory ; and the evidence against him was that he visited the women once or twice a week, that the rattling of copper money was heard while he was with them, that once he was counting something just after he came out, that on going to the room just after their apprehension, he resisted being stopped, and jumped over a wall to escape, and that there were found upon him a bad three-shilling-piece and five bad sixpences : upon a case reserved, the judges thought the evidence too slight to convict him (,r). {ii) Rex V. Daiuttry, York Sp. Ass. 1841. {x) Rex V. Isaacs, Russell on Crimes (6th ed. by Smith & Keep), vol. i. p. 2 1 6. Sed quccre. UNEXPLAINED APPEARANCES OF SUSPICION. 83 So natural and forcible is this rule of presumption, that the guilty are instinctively compelled to en- deavour to evade its application, by giving some explanation or interpretation of adverse facts, con- sistent, if true, with innocence ; but its force is commonly aggravated by the improbability, or absurdity even, of such explanations, or the incon- sistency of them with admitted or incontrovertible facts. All such false, incredible, or contradictory statements, if disproved, or disbelieved, are not simply neutralized, but become of a substantive inculpatory effect. Even in such circumstances, however, guilt cannot be safely inferred, unless such a substratum of evidence, direct or circum- stantial, has been laid as creates an independent prima facie case against the prisoner i^y). On the trial for the murder by poison of a female, whom the prisoner alleged to have died from the effects of a draught taken by her in anger during an altercation between them, Mr. Baron Parke told the jury that it was for them to say whether the falsehoods the prisoner had told, did not show that he was conscious that he had been guilty of some act that required concealment ; that it was very true he might not wish it to be known he had been visiting a woman who, there was good reason to believe, had formerly been his mistress ; but that, if he was an innocent man, and had been present at the death, one would have supposed he would have disclosed it immediately and called in some {y) Per Mr. Justice Littledale in Rex v. Clark, Warwick Summ. Ass. 1 83 1. It would be more accurate to say "a substantial and independent prinid facie case." G 2 84 INCULPATORY MORAL INDICATIONS. assistance. They had here two iintrutlis, tliat he meant to dine at the west end of the town and did not ; and iiis denial that he had been out of London that evening ; these he said, were very material matters for their inquiry, bearing in mind that upon the evidence there was a very ample case for grave consideration, to show that the deceased died of prussic acid, and that the prisoner was present in the house at the moment of that death. His Lord- ship added, that if the prisoner's representation had been true, that the deceased had poisoned herself, one would have supposed that he would have taken the first opportunity, having been present at the time this occurred, of exonerating himself from it, by making this declaration to the first person he met ; one would expect, if he had been a man of the least cordial feeling, he would have waited to see whether it was true or not that she had taken this poison, and called for assistance, instead of which, he is proved to have gone in a short time to London, and when he got to London he is proved to have denied altogether that he had been at Slough. You must judge, said the learned Baron, of the truth of the case against a person by all his conduct taken together {z). An important consideration in this connection is the time at which and the occasion upon which the explanation of suspicious circumstances or other matter of defence within the knowledo-e of an accused person is propounded. Has it been put (z) Reg. V. Taivell, Aylesbury Sp. Ass. 1845. 2 C. & K. 309, note. I Woodall's Celebrated Trials, 162, and see pp. 313-317, infra. UNEXPLAINED APPEARANCES OF SUSPICION. 85 forward at the natural time ? In some instances the explanation or matter of defence would spring unbidden to the lips of an innocent man the moment he was accused of the crime in question. In others it would be natural enough that he would require time to collect his thoughts and exercise his memory. In all cases, if it involves allegations of fact, the truth of which can be inquired into, the value to be attached to it will depend, and ought to depend, largely upon whether the opportunity for inquiry is afforded by the person inculpated. If the oppor- tunity be given, and the facts alleged are not contra- dicted by evidence, the natural and proper inference is that they are true, and the accused person ought to have the full benefit of such an inference. If they are suppressed until inquiry is impossible, while it is too much to say that they ought not to be listened to and considered, the credit to be given to them and to any evidence by which they may be supported ought to be very largely discounted. There are three occasions upon which every man who is tried upon indictment has had the opportunity of giving any explanation of his conduct or of men- tioning any other defence he may have : first, when he is originally charged, whether by an employer or ether person having legitimate occasion to speak to him upon the subject of the charge, or by a police officer making inquiries or effecting his arrest ; secondly, when formally charged at the police station ; and thirdly, after the evidence has been given against him before the magistrates and he is offered the choice whether he wishes to say anything 86 INCULPATORY MORAL INDICATIONS. in answer to tlie charge or not. The last is of course the most important of these occasions. It is a common trick of criminal advocacy to say in answer, " I reserve my defence ; I call no witnesses here, and I offer no evidence," and the criminal classes themselves have caught it from their advisers, and largely make use of the phrase. Such a beginning is to say, the very least, a bad introduction to a true story. Occasionally, the explanation or defence is nevertheless true, and the suspicion with which, under such circumstances, it ought to be regarded is due to very bad advice ; but this is a rare exception, and usually such an answer [jiven before committal means that there is no defence, or that a story is in contemplation which will not bear investigation. It is very necessary that such considerations should be borne in mind. There is a natural and a wholesome tendency in most men to give to a prisoner who is often a man with small or no means, and who speaks at a disadvantage necessarily inci- dent to his position, every possible consideration, and plausible stories told from the dock by persons, many of whom are consummate actors [a), are apt to meet with more rather than with less of the attention they deserve. Want of means to bring witnesses is (a) On one occasion the Editor offered a prisoner an adjournment of the trial in order that the witnesses, who he said could prove his innocence, might be produced. The offer was accepted with an appearance of effusive gratitude, which made it appear almost an unnecessary ceremony. The witnesses came the next day, when it appeared that the story was a fabrication from beginning to end. UNEXPLAINED APPEARANCES OF SUSPICION. 87 constantly allei^ed. This may be a legitimate excuse for not bringing the witnesses. It is none for the failure to mention at the right time and upon the natural occasion, the facts which it is alleged that these witnesses could prove, in which case the omis- sion on the part of the prosecution to investigate and bring evidence of the real facts will serve the prisoner quite as effectually as the witnesses them- selves could do. Of course, ignorance or want of education on the part of a prisoner must be taken into account, and all such considerations as have been pointed out should be applied with caution and judgment. But they are important, and are of very general application. The most ignorant man in the world, accused of committing a crime in London the day before yesterday, if he had really been in Bir- mingham at the time in question, could scarcely fail to say so ; and the same observation applies to many less simple illustrations of the matter under discussion. There are few limits to the ingenuity and plausi- bility of many of the criminal classes — a fact of which a judge has had much more experience than jurors can possibly have— and if a plausible falsehood be impressively told from the dock or by the prisoner in the witness box, and told upon his trial for the nrst time, there may be no answer to it possible except that it is then told for the first time. Occa- sionally it is possible to test a story told under such circumstances, especially since the Act which has permitted jurors, on trials for felonies other than murder, to separate before giving their verdict, and has thus made an adjournment possible if there 88 INCULPATORY MORAL INDICATIONS. is time for it before the conclusion of the particular assizes or sessions. The Editor has made use from time to time of such a power under such circum- stances, and the result has almost, if not quite, universally been to discredit a story reserved for production on the day of trial. The following- is a striking instance of the kind. A man named Williams was tried for breaking into a lady's house at Salisbury on the 9th May, 1901. Six or seven pounds in sovereigns, a watch, a ring, a set of false teeth, and other articles were stolen from the house between i and 4 p.m., during the absence of the inmates at a bazaar, which was opened by Lord Roberts. Evidence was given by the postmaster at Salisbury that a person, whom he identified as the prisoner, had, about 1.50, brought to the post-office for despatch a brown paper parcel. After his depar- ture the postmaster had compulsorily registered it, because it appeared to him. to contain valuables. Five minutes later the same man returned, bought three postal orders for ^i each, and paid for them with three sovereigns and the odd pence. The parcel was directed to Mrs. Williams, 8, Harvey Street, Hyde Road, Hoxton. Upon the robbery being discovered, the police at Salisbury telegraphed to the police at Hoxton, and the next morning, when the postman called at 8, Harvey Street, a detective followed him into the house, and took possession of a registered brown paper parcel and a letter which were about to be delivered to the prisoner, who was standing on the staircase. His wife was in the house. He was arrested and taken to Salisbury, UNEXPLAINED APPEARANCES OF SUSPICION. 89 where the parcel was opened, and found to contain the stolen watch, ring, and false teeth. The letter contained the three postal orders procured at Salis- bury, and three others for a like amount issued on the same 9th May, at Winterbourne Gunner, four miles from Salisbury. The prisoner had made no answer to the charge at the police station, and before the magistrates had simply denied his guilt. At the trial, however, he went into the witness box, and swore that he was at Battersea all day on the 9th May. He was a person against whom nothing had been recorded, and was of respectable appearance and plausible manners. It was strongly urged on his behalf that it was a case of mistaken identity, that no evidence had been eiven of his having been at Winterbourne Gunner, or obtained the postal order issued from that office, and that the real thief was the unknown man who had obtained the Winterbourne Gunner orders. The judge observed that had the prisoner denied at an earlier stage that he had been at Salisbury on the 9th May, the police would no doubt have given evidence of what had happened at Winterbourne Gunner, and that inquiries there would have probably resulted in the demonstration either of the prisoner's guilt or of his innocence. The trial was adjourned for a couple of hours, at the end of which time the postmistress from Winterbourne Gunner was produced. She swore that the prisoner had come to her post-office about four o'clock, and had bought the three postal orders contained in the letter. The nearest railway station to Winterbourne Gunner is Porton, which is about a mile offi The keeper of a go INCULPATORY MORAL INDICATIONS. hotel at Porton proxcd that the prisoner and another man had called at liis hotel, about a quarter past four, had gone into the commercial room and written letters, and gone out again. They had then returned and gone to the railway station, which is close by, a little after 5. A railway porter identified the prisoner as one of two men who had left together by the 5.32 train. The prisoner had asserted that he was in Hyde Road on the evening of the 9th May, and had seen the detective who arrested him the next morning in the streets, describing his dress. The detective admitted that he was there soon after 9, and it was suggested that there was not time for the prisoner to have reached Hoxton by that hour if he had been at Porton at 5.30, particularly as the trains from Salisbury on that night were very full. Of course no railway official could be called to show at what time the train leaving Porton at 5.32 arrived at Waterloo. It happened, however, that the High Sheriff, who was in court, had travelled to London by the very train in question, and he deposed that the train arrived at Waterloo about 8, which left an ample margin for arrival at Hoxton before 9. Thus the prisoner's story and the suggestions made on his behalf were all completely disproved, and the prisoner was convicted {^d). Allowance must nevertheless be made for the weakness of human nature, and for the difficulties which may attend the proof of circumstances of {b) Rex V. TJiomas Williams, Salisbury Summer Assize, 190 1, coram Wills, J . UNEXPLAINED APPEARANCES OF SUSPICION. QI exculpation (^) ; and care must be taken that cir- cumstances are not erroneously assumed to be suspicious without sufficient reason {^d). Section 6. indirect confessional evidence. Although the subject of direct confession does not fall within the province of this essay, it is necessary to advert to some of the principal rules which relate to that important head of moral evidence ; because they are of great moment in their application to such particulars of circumstantial evidence as are only indirectly in the nature of confessional evidence. A voluntary confession of guilt, if it be full, con- sistent, and probable, is justly regarded as evidence of the highest and most satisfactory nature ( O 'Ji §i ^ ^ =5 z prisoners were the leading actors, in March, 1854; but Mr. Baron Alderson told the jury that they 5 were not bound to believe either the whole or any < ^ part of the statement made by the prisoner Strahan, pC and that they must take it with this consideration as one of the circumstances of the case and no more {y). Of the credit and effect due to a confessional statement the jury are the sole judges : they must consider the whole confession, together with all the other evidence in the case, and if it is inconsistent, improbable, or incredible, or is contradicted or dis- credited by other evidence, or is the emanation of a weak or excited state of mind, they may exercise their discretion in rejecting it, either wholly or in part, whether the rejected part make for or against the prisoner [z). On the trial of a man for setting fire to a stack of hay, it appeared that between two and three o'clock in the morning, a police constable attracted by the cry of fire went to the spot, close to which he met the prisoner, who told him that a haystack was (j) Reg. V. Strahan atid others, C. C. C. Oct. 1855. Sessions Papers, vol. 42. {2) Rex V. Higgins, 3 C. & P. 603 ; Rex v. Steptoe, 4 C. & P. 397 ; I Greenleaf's L. of Ev., § 218. INDIRECT CONFESSIONAL EVIDENCE. IQI on fire, and that he was going to London ; the policeman asked him to give information of the fire to any other pohceman he might meet, and to request him to come and assist. Shortly afterwards, on his way towards London, the prisoner met a Serjeant of police whom he informed of the fire, stating that he was the man who set the stack on fire, upon which he was taken into custody. The Serjeant of police, on cross-examination by the prisoner, stated that the magistrates entertained an opinion that he was insane, and directed inquiries to be made, from which it appeared that he had before been charged with some offence and acquitted on the ground of insanity. When apprehended, the prisoner appeared under great excitement ; and upon his trial he alleged that he had been confined two years in a lunatic asylum, and had been liberated only about a year ago ; that his mind had been wandering for some time ; and that passing by the place at the time of the fire, he was induced, in a moment of delirium, to make this groundless charge against himself. He begged the Court to explain to the jury the different result that would follow from his being acquitted on the ground of insanity and an unconditional acquittal : and said that rather than the former verdict should be returned, which would probably have the effect of immuring him in a lunatic asylum for the rest of his life, he would retract his plea of not guilty, and plead guilty to the charge. Mr. Justice John Williams in summing up remarked, that there did not appear to be the least evidence against the prisoner except his own state- ment ; and that it was for the jury to say under all the 102 INCULPATORY MORAL INDICATIONS. circumstances whether they beheved that statement was founded in fact, or whether it was, as the prisoner alleged, merely the effect of an excited imagination and weak mind. The prisoner was acquitted (a). It is obvious that every caution observed in the reception of evidence of a direct confession, ought to be more especially applied in the admission and estimation of the analogous evidence of statements which are only indirectly in the nature of confessional evidence ; since such statements, from the nature of the case, must be ambiguous, or relate but obscurely to the corpus delicti. *' Hasty confessions," says Sir Michael Foster, " made to persons having no authority to examine, are the weakest and most suspicious of all evidence. Proof may be too easily procured, words are often misreported, — whether through ignorance, inattention, or malice, it mattereth not to the defendant, he is equally affected in either case ; and they are extremely liable to misconstruc- tion, and withal this evidence is not in the ordinary course of things to be disproved by that sort of negative evidence by which the proof of plain facts may be and often is confronted " {b). " How easy is it," it has been admirably said, "for the hearer to take one word for another, or to take a word in a sense not intended by the speaker, and for want of an exact representation of the tone of voice, emphasis, {a) Reg. V. Wilson, Maidstone Wint. Ass. 1844. The same view was adopted by Wilde, L. C. J., in a case of arson at Maidstone Spring Assizes, 1847, where the prisoner to conceal his disgrace refused to give his name. [b) Foster's Discourses on the Crown Law. Disc. I. ch. 3, p, 243 ; and see i Greenleaf's L. of Ev. § 214. INDIRECT CONFESSIONAL EVIDENCE. I03 countenance, eye, manner and action of the one who made the confession, how ahiiost impossible it is to make third persons understand the exact state of his mind and meaning ! For these reasons such evidence is received with great distrust and under apprehension for the wrong it may do"(^). Upon the trial of a man for the murder of a woman, who had been brutally assaulted by three men, and died from the injuries she received, it appeared that one of the offenders, at the time of the commission of the outrage, called another of them by the prisoner's name, from which circum- stance suspicion attached to him. A person deposed that he met the prisoner at a public house, and asked him if he knew the woman who had been so cruelly treated, and that he answered, " Yes, what of that ? " The witness said, that he then asked him if he was not one of the parties concerned in that affair ; to which he answered, according to one account, " Yes, I was ; and what then ? " or, as another account states, " If I was, what then V It appeared that the prisoner was intoxicated, and that the questions were put with a view of ensnaring him ; but, influenced by this imprudent language, the jury convicted him, and he was executed. The real offenders were discovered about two years afterwards, and two of them were executed for this very offence, and admitted their guilt ; the third having been admitted to give evidence for the Crown [d). {c) In Resp. v. Fields, Peck's Rep. 140, quoted in i Taylor's L. of Ev., 9thed., p. 555. {d) Rex V. Coleman, Kingston Spring Ass., 1749. 4 Celebrated Trials, 344. 104 IN'CULPATORY MORAL INDICATIONS. But in the most debased persons tliere is an involunlary tendency to triitli and consistency, except when the mind is on its o;uard, and studiously bent upon conceahnent ; and this law of our nature sometimes gives rise to minute and unpremeditated acts of ijreat weiirht. In the memorable case of Eugene Aram, who was tried in 1759 for the murder of Daniel Clark, an apparently slight circum- stance in the conduct of his accomplice, led to his conviction and execution. About thirteen years after the time of Clark's being missing, a labourer, employed in digging for stone to supply a limekiln near Knaresborough, discovered a human skeleton near the edge of the cliff. It soon became suspected that the body w^as that of Clark, and the coroner held an inquest. Aram and Houseman were the persons who had last been seen with Clark, on the night before he was missing. The latter was sum- moned to attend the inquest, and discovered signs of uneasiness : at the request of the coroner he took up one of the bones, and in his confusion dropped this unguarded expression, " This is no more Daniel Clark's bone than it is mine ; " from which it was concluded, that if he was so certain that the bones before him were not those of Clark, he could give some account of him. He was pressed with this observation, and, after various evasive accounts, he stated that he had seen Aram kill Clark, and that the body was buried in St. Robert's Cave, with the head to the rioht in the turn at the entrance of the cave, and upon search, pursuant to his statement, the skeleton of Clark was found in St. Robert's Cave, buried precisely as he had described it. INDIRECT CONFESSIONAL EVIDENCE. lOj Aram was consequently apprehended and tried at York in 1759, Houseman being the sole witness against him. He was convicted and executed, after having made a confession of the crime (e). A remarkable fact of the same kind occurred in the case of one of three men convicted, in February, 1807, of a murder on Hounslow heath. In conse- quence of disclosures made by an accomplice, a police-officer apprehended the prisoner four years after the murder on board the ' Shannon ' frigate, in which he was serving as a marine. The ofhcer asked him in the presence of his captain where he had been about three years before ; to which he answered that he was employed in London as a day-labourer. He then asked him where he had been employed that time four years : the man immediately turned pale, and would have fainted away had not water been administered to him. These marks of emotion derived their weight from the latency of the allusion — no express reference having been made to the offence with which the prisoner was charged — and from the probability that there must have been some secret reason for his emo- tion connected with the event so obscurely referred to, particularly as he had evinced no such feeling upon the first question, which referred to a later period (_/). The conduct of a person accused of a crime, the (e) Life and Trial of Eugene Aram, 1759. Best edition printed at Richmond, 1832. See Ann. Reg. 1759, p. 360: 4 Celebrated Trials, 243, and Diet, of Nat. Biog., article Aram. (/) Rex V. Hajro^erty and others, 6 Celebrated Trials, 19 ; and O. B. Sessions Papers, 1807. I06 INCULPATORY MORAL INDICATIONS. things he says and does, or the letters he writes, are often important pieces of indirect confessional evidence, which may prove his guilt conclusively. On the morning of Oct. 21st, 1891, at about 3 a.m., a young woman named Clover, who lived in Lambeth, Avas taken violently ill, and died at about 9 a.m. A local practitioner gave a certificate of death from syncope caused by delirium tremens. No suspicion of foul play was aroused, and the girl was buried without any further inquiry. In the following spring suspicions accumulated against a man known as Dr. Neill with regard to the deaths of other women, and on May 5th, 1892, Clover's body was exhumed, and an examination showed that death had un- doubtedly been caused by strychnine. Up to within a week or so previously there had been no suggestion that the woman had died anything but a natural death, and strychnine had not been mentioned at all. Upon the trial of this man in October, 1892, for the murder of Clover, the most strikincr evidence acjainst him was, that about a week after Clover's death he asked his landlady's daughter to go up to the house where Clover had lived, as he had heard that a girl had been poisoned there, and he wanted to know if that was the case. His request was refused, and no further notice of it was taken at the time. On Nov. 26th, 1 89 1, a well-known West-end doctor received a letter (undoubtedly in prisoner's hand- writing) stating that Clover had been poisoned wdth strychnine, accusing the doctor of murder, and demanding £2,500 as the price of silence. This letter the doctor immediately sent to the police, but after a few attempts to discover the author, it was INDIRFXT CONFESSIONAL EVIDENCE. I07 considered as a mere mad attempt to levy blackmail. When the murder was subsequently discovered and investigated, it became obvious that these statements, made at a time when there was no suggestion of murder, and when no one in the world except the murderer could have known that strychnine was the cause of death, were the strongest possible evidences of guilt. The prisoner was convicted and executed, and had undoubtedly been the author of other similar crimes perpetrated for the purposes of levying blackmail (^^). To this head may be referred the acts of con- cealment, disguise, flight, and other indications of mental emotion usually found in connection with guilt [h). By the common law, filght was con- sidered so strong a presumption of guilt, that in cases of treason and felony it carried the forfeiture of the party's goocis, whether he were found guilty or acquitted (/) ; and the officer always, until the abolition of the practice by statute (/c), called upon the jury, after verdict of acquittal, to state whether the party had fled on account of the charge. These several acts in all their modifications are indications of fear ; but it would be harsh and unreasonable to {g) Reg. V. Neill or Cream, C. C. C. cor. Hawkins, J. See The Times, Oct. iZih. et seq., 1892. Sessions Papers, vol. 116, 14, {h) See Rex v. Cross/ield, 26 St. Tr. 216 et seq. (/) " For he hath done what in him lay to stop the course of public justice." See Foster's Discourses on the Crown Law, Disc. I. chaps, ii. and iii. pp. 272 and 286. Cf. Co. Litt. s. 745, p. 391a ; Co. Rep. xn. 121. (>^) 7 & 8 Geo. IV. cap. 28, § 5, which is itself repealed by the Statute Law Revision Act, 1888 (51 & 52 Vict. ch. n), but so that the old law does not revive. I08 INCULPATORY MORAL INDICATIONS. interpret them invariably as indications of guilty consciousness, and greater weight has sometimes been attached to them than they have fairly warranted. lJ)oubtless the manly carriage of integrity always commands the respect of mankind, and all tribunals do homage to the great principles from which consistency springs ; but it does not follow, because the moral courage and consistency which generally accompany the consciousness of uprightness raise a presumption of innocence, that the converse is always true. Men are differently constituted as respects both animal and moral courage, and fear may spring from causes very different from that of conscious guilt ; and every man is therefore entitled to a candid construction of his words and actions, particularly if placed in circumstances of great and unexpected difficulty (/). Mr. Justice Abbott on a trial for murder where evidence was given of flight, observed in his charge to the jury, that " a person, however conscious of innocence, might not have courage to stand a trial ; but might, although innocent, think it necessary to consult his safety by flight." " It may be," added the learned judge, "a conscious anticipation of punishment for guilt, as the guilty will always anticipate the con- sequences ; but at the same time it may possibly be, according to the frame of mind, merely an inclination to consult his safety by flight rather than stand his trial on a charge so heinous and scandalous as this is " (w). In his charge to the jury upon (/) Per Gurney, B., in Reg. v. Belaiiey ; see pp. 336-343, infra., where the facts of this case are given at length. {m) Rex V. Donnall, see pp. 331-336, infra. INDIRECT CONFESSIONAL EVIDENCE. lOQ the trial of Professor Webster for niurder, Chief Justice Shaw of Massachusetts, said, " Such are the various temperaments of men, and so rare the occurrence of the sudden arrest of a person upon the charge of a crime so heinous, that who of us can say how an innocent or a guiky man ought or would be likely to act in such a case ? or that he was too much or too little moved for an innocent man ? Have you any experience that an innocent man, stunned under the mere imputation of such a charge, will always appear calm and collected ? or that a guilty man, who by knowledge of his danger might be somewhat braced up for the consequences, would always appear agitated or the reverse " (;z). It is not possible to lay down any express test by which these various indications may be infallibly referred to any more specific origin than the operation of fear. Whether that fear proceeds from the consciousness of guilt, or from the apprehension of undeserved disgrace and punishment, and from deficiency of moral courage, is a question which can be judged of only by reference to concomitant circumstances. Prejudice Is often epidemic, and there have been periods and occasions when public indignation has been so much and so unjustly aroused, as reasonably to deter the boldest mind from voluntary submission to the ordeal of a trial. The consciousness that appearances have been suspicious, even where suspicion has been un- warrantable, has sometimes led to acts of conduct («) Bemis's Rep. 486 (1S50). Two other reports are extant of the same date, one printed in Boston and one in London. no INCULPATORY MORAL INDICATIONS. apparently incompatible with innocence, and drawn down the unmerited inlliction of the highest penalty. The inconclusiveness of these circumstances is strikingly exemplified by a case mentioned in a preceding page, where the magistrate was so fully convinced of the prisoner's innocence, that he allowed him to go at large on bail to appear at the assizes. The coroner's inquest having brought in a verdict of ' guilty ' against him, he endeavoured to escape from the danger of a trial in the excited state of public feeling by flight ; but was sub- sequently apprehended, convicted, and executed on a charge of murder, of which he was unquestionably guiltless [o). In the endeavour to discover truth, no evidence should be excluded ; but a case must be scanty of evidence which demands that any considerable importance should be attached to circumstances so fallacious as the acts in question. It has been observed, that if the evidence without them is sufficient, this species of evidence is unnecessary, and that if not, then the inferences from language, conduct, and behaviour, seem not of sufficient weitrfit to give any conclusive effect to the other proofs (/). It is, in fact, a make- weight and nothing more ; and care must always be taken that mere make-weights are not allowed to have an exaggrerated effect. (o) Rex V. Coleman, vide supra, p. 103 ; and see the case of AV.rv. Green and others, 14 St. Tr. 1199, where several persons, one of whom had voluntarily surrendered, were convicted in Scotland and executed, at a period of great excitement against Englishmen, upon a groundless charge of piracy and murder. {p) Per Shaw, C. J., in P/vf. Webs.'ef's case, vide supra, pp. loS, 109. simulation of evidence. ih Section 7. the suppression, destruction, fabrication, and simulation of evidence. It is a maxim of law, that omnia prasumiintur contra spoliatorcni, and the suppression or destruction of pertinent evidence is always therefore deemed a prejudicial circumstance of great weight ; for as no action of a rational being is performed without a motive, it naturally leads to the inference that such evidence, if it were produced, would operate un- favourably to the party in whose power it is to produce it, and who withholds it or has wilfully deprived himself of the power of producing it (^). A chimney-sweeper having found a jewel, took it to a jeweller to ascertain its value ; who, having removed it from the socket, gave him three-half- pence, and refused to return it. The friends of the finder encouraged him to bring an action against the jeweller; and Lord Chief Justice Pratt directed the jury, that unless the defendant produced the jewel, and showed it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages (r). In an action of trover for a diamond necklace which had been unlawfully taken out of the owner's possession, it appeared that some of the diamonds were seen shortly afterwards in the defendant's possession, and that he could give no {q) Starkie's L. of Ev., 4th ed. 1853, pp. 755 et scq. (r) Armory v. Del amir ie, I Strange, 505 ; and see Rex v. Lord Melville^ 29 St. Tr. at col. 1456. 112 INCULPATORY MORAL INDICATIONS. satisfactory account how he came by them : the jury were directed to presume that the whole set of diamonds had come to the defendant's hands, and that the full value of the whole was the proper measure of damages (s). On an ejectment involving the title to large estates in Ireland, the question being whether the plaintiff was the legitimate son of Lord Altham, and therefore prior in right to the defendant, who was his brother, it was proved that the defendant had procured the plaintiff, when a boy, to be kidnapped and sent to America, and on his return, fifteen years afterwards, on occasion of an accidental homicide, had assisted in an unjust prosecution against him for murder : it was held that these circumstances raised a violent presumption of the defendant's knowledge of title in the plaintiff; and the jury were directed that the suppressor and the destroyer were to be considered in the same light as the law considers a spoliator, as having destroyed the proper evidence ; that against him, defective proof, so far as he had occasioned such defect, must be received, and everything presumed to make it effectual ; and that if they thought the plaintiff had given probable evidence of his being the legitimate son of Lord Altham, the proof might be turned on the defendant, and that they might expect satisfaction from him that his brother died without issue (/). On a bill filed against a defen- dant who had destroyed a deed by which the (s) Mortimer \. Craddock, 12 L. J. N. S. (C. P) 166. (/) Craig d. A7inesley v. Earl of Anglesea, 17 St. Tr. 1416; and see the Tracy Peerage, 10 C. & F. 154; Cltenties v. Pezzey, I Camp. 8 ; Lawton v. Swcejiey, 8 Jurist, 964 ; Greenleaf's L. of Ev. s. yj. SIMULATION OF EVIDENCE. II3 plaintiff claimed under certain limitations a real estate, secondary evidence was given of the limita- tions in the deed ; but the evidence, as the witnesses gave it, was of limitations which could not legally take effect, being of a term of years after an indefinite failure of issue, — Sir Joseph Jekyll, the Master of the Rolls, said that as against the man who had destroyed the instrument which would have shown what the rights of the plaintiff were, he would pre- sume even what the plaintiff had not proved, that the limitation was to take place after the failure of issue in the life-time of a person then in being (u). The foregoing illustrations of the rule of evidence under consideration, are among the most remarkable recorded cases of its application; nor are they the less pertinent because they arose in civil cases, since the general principles of evidence are the same in all cases, whether civil or criminal ; and no incon- siderable proportion of the criminal trials which occur, present examples of its practical bearing and effect [x). Amongst the most forcible of presumptive indica- tions may be mentioned, all attempts to pollute or disturb the current of truth and justice, or to prevent a fair and impartial trial, by endeavours to intimi- date, suborn, bribe, or otherwise tamper with the prosecutor, or the witnesses, or the officers or ministers of justice, the concealment, suppression, destruction, or alteration of any article of real evi- dence ; any of which acts, clearly brought home to (u) Da/s/on v. Coatsivorth, i P. Wms. 731. \x) Rexv.DelaMoite,2\ St.Tr.8io; AV^v.i?«r^/^//,4B.&Ald.atp. 12a C.E. I 1 14 INCULPATORY MORAL INDICATIONS. the prisoner, or liis ag-cnts, are of a most prejudicial effect, as dcncjtino- on his part a consciousness of guilt, and a desire to evade the pressure of facts tending- to estabh"sh it (7). Perhaps in no case have circumstances of this kind told with such fatal effect as in that of Donellan, who was convicted of the murder of Sir Theodosius Boughton by poison. The prisoner, after having admiriistered the fatal draught in the form of medicine, rinsed out the phial which had contained it, and when that fact was stated before the coroner, he was observed to check the witness by pulling her sleeve. In his charge to the jury, Mr. Justice Duller laid great stress upon that circumstance. " Was there anything so likely," said the learned judge, " to lead to a discovery as the remains, however small they might have been, of medicine in the bottle ? But that is destroyed by the prisoner. In the moment he is doing it, he is found fault with. What does he do next? He takes the second bottle, puts water into that, and rinses it also. He is checked by Lady Boughton, and asked what he meant by it — why he meddled with the bottles. His answer is, he did it to taste it; but did he taste the first bottle ? Lady Boughton swears he did not. The next thing he does, is to eet all the thin^js sent out of the room ; for when the servant comes up, he orders her to take away the bottles, the basin, and the dirty things. He puts the bottles into her hand, and she was going to carry them away, but Lady Boughton stopped her. Why were all these things to be removed ? Why (_y) J^ex V. Crossjie/d, 26 St. Tr. 217 ; Rex v. Donclhin, p. 324, infra; Rex V. Doniiall, p. 331, infra; Reg. v. Palmer, p. 344, injra. SIMULATION OF EVIDENCE. II5 was it necessary for the prisoner, who was fully advertised of the consequence by Lady Boughton, to insist upon having everything removed ? Why should he be so solicitous to remove everything that might lead to a discovery?" After dealing with the prisoner's conduct in other matters, the learned judge continued : "Then as to the conduct of the prisoner before the coroner. Lady Boughton had mentioned the circumstance of the prisoner's rinsing out the bottle — one of the coroner's jury swears that he saw him pull her by the sleeve. Why did he do that } If he was innocent, would it not be his wish and anxious desire, as he expresses in his letter, that all possible inquiry should be made ? W^hat passes afterwards ? When they got home, the prisoner tells his wife that Lady Boughton had given this evidence unnecessarily ; that she was not obliged to say anything but in answer to questions that were put to her, and that the question about rinsing out the bottles was not asked her. Did the prisoner mean that she should suppress the truth ? that she should endeavour to avoid a discovery as much as she could by barely saying Yes or No to the questions that were asked her, and not disclose the whole truth } If he was innocent, how could the truth affect him ? but at that time the circumstance of rinsing out the bottles appeared even to him to be so decisive that he stopped her on the instant, and blamed her afterwards for having mentioned it. All these," said the learned judge, " are very strong facts to show what was passing in the prisoner's own mind " (2). {z) Gurney's Shorthand Report, referred to supra, p. 2)7' See p. 324, infra, for the facts of the case. I 2 Tl6 INCULPATORY MORAL INDICATIONS. A boatman was convicted of stealing rum which had been delivered to his master, a carrier by canal, for conveyance from Liverpool to Birmingham, The carrier's agent at Liverpool had taken a sample of the spirit and tested its strength ; and upon delivery at its place of destination, the spirit was found to be under proof, and the portion abstracted had been replaced with water. The carrier's clerk, on the complaint of the consignee, went to the boat where the prisoner was, to require explana- tion ; but as soon as he had stepped into it, the prisoner pushed him back upon the wharf, and forced the boat Into the middle of the canal, where he broke three jars and emptied their contents, which by the smell were proved to be rum, into the canal {a). In a case already mentioned, the prisoner, who was helping in the house of a medical man, had given to his wife a cup of tea, which tasted very hot and unpleasant. After taking it, the mistress had been very ill. A few days later the mistress was in the kitchen, and mixed herself some brandy and water in a cup. She went into the garden, leaving the teacup on the kitchen table. When she came back she tasted the brandy and water, and exclaimed, " What a disagreeable taste ; it is exactly like the tea." At that moment the prisoner drew the cloth off the kitchen table, and the teacup was broken. The pieces were throw^n away, but after- wards recovered, when they were found to be coated {a) Rex V. Thomas^ Warwick Spring Ass. 1836, coram Bosan- quet, J. SIMULATION OF EVIDENCE. II7 with a sediment which, upon being analysed, turned out to be corrosive subUmate {S). Other facts of the same kind are the common cases of the obHteration, effacing, or otherwise removing marks of ownership or identity from plate, linen, or other articles of property, or of stains of blood, or other matter from the person or dress of the accused, or the suggestion or insinua- tion of false, groundless, or deceptive hypotheses, or explanations in order to neutralize or account for adverse facts or appearances. It is on the same principle that, by statute, if any person on board a vessel which is chased by an officer of the preventive service, shall throw overboard, stave, or destroy any part of her lading, the vessel is declared to be for- feited ; and that goods liable to duty concealed on board any vessel are also declared to be forfeited (c) ; and that other similar statutable presumptions have been created ; and that whenever absent witnesses are so mixed up with transactions before the Court as to give rise to comments on their not being present, it is the common practice to prove the cause of their non-attendance, as, for instance, death, illness, or their having quitted the country {d). Another fact of this kind is the attempt to prevent post-mortem examination by the premature interment {b) Reg. V. Sarah Kibbler, Warwick Autumn Ass. 18S9, coramWWls,]. (c) 8 & 9 Vict. c. 87. ss. 5 (d), 6, and 29. See now the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36). See §§ 177, 179, 180, 183, &c. {d) Per Pollock, L. C. B., in Cowper v. French^ Exch. N. P. J uly loth, 1850. Il8 INCULPATORY MORAL INDICATIONS. of human remains, under the pretext that it is ren- dered necessary by the state of the body, since it cannot but be known that such examination will always furnish important, and generally conclusive, evidentiary matter as to the cause of death (e). So also is the concealment of death by the destruction or attempted destruction of human remains {/) ; but in this case the presumption of criminality results from the act of concealment rather than from the nature of the means employed, however revolting, which must be regarded only as incidental to the fact of concealment and not as aggravating the character and tendency of the act itself. Where a prisoner tried for murder admitted that he had cut off the head and legs from the trunk of a female, and concealed the remains in several places, but alleged that her death had taken place by accident while she was in his company, and that in the alarm of the moment, and to prevent suspicion, he had determined to conceal the death, Lord Chief Justice Tindal told the jury that the concealment of death under such circumstances, had always been consi- dered to be a point of the greatest suspicion, but that this evidence must be received with a certain degree of modification, and especially in a case where the feelings might be excited by the singular means of concealment adopted by the prisoner ; that this point of evidence was therefore for the consideration of the jury, and that it was for them to judge how far (e) Rex V. Donellan, p. 324, infra; Rex v. Donnall, p. 331, infra; Rex V. Palmer, p. 344, ijifra. (/) Rex V. GardeUe, 4 Celebrated Trials, 400 ; Rex v. Cook, p. 290, infra; Reg. v. Good, C. C. C. May, 1842. SIMULATION OF EVIDENCE. IIQ it was a proof of the prisoner's guilt ; but the mert tfeneral fact of the concealment, added the learned judge, is to be considered, and not the circumstances under which it took place (^). So, too, in cases where it is a question whether death has occurred accidentally or from suicide, or is attributable to murder, concealment of the body is often a grave inculpatory fact. In a case tried at Edinburgh in 1889, it was proved that prisoner and the deceased, a man named Rose, who were casual touring acquaintances, took a lodging together, about July the 13th. On the 16th they climbed Goat Fell together. Late t,hat night, prisoner, who had been usino- a false name, returned alone to the lodcrintrs and carried off both his own and Rose's property, leaving the bill unpaid. Rose's body was afterwards found hidden by stones near a cliff over which he mio'ht have fallen in descending Goat Fell. The medical evidence was divided as to whether his injuries were more probably caused by a fall or by blows from a stone. The defence was that Rose met his death by an accident, that the prisoner had parted with him previously, and having decamped with his property, was afraid to come forward when inquiries were made. This theory left it unexplained as to how the body became covered up, or who did it, or what reason there was for doing it. The jury by a majority found the prisoner guilty of murder {h). {g) Rex V. Greenacre, C. C. C. April, 1837, 8 C. & P. 35 ; and see Professor Webster's case, Ikmis's Report, p. 109, sup/a. {Ji) Reg. V. Laurie. See limes, November 9th and nth, 1889. 120 INCULPATORY MORAL INDICATIONS. Other such facts are the officious affectation of grief and concern as an artifice to prevent or avert suspicion (/), false representations as to the state of a party's health, or the utterance of obscure or mysterious predictions or allusions, the pretence of supernatural dreams, noises, or other omens or inti- mations, calculated to prepare the connections for the event of sudden death, and to diminish the surprise and alarm which naturally follow such an event. A woman who was convicted of murder, about a month before the catastrophe told the mother of an infant child whom, as well as her own husband and child, she poisoned, that she had had her fortune told, and that within six weeks three funerals would go from her door, those of her husband and son and the child of the person she was addressing {j). A case tried in the Supreme Court of Massa- chusetts affords a useful illustration of the value of this kind of evidence. Sarah Jane Robinson, a widow, was charged with the murder of her brother- in-law. Freeman, by arsenical poisoning. Freeman had a wife and two children, and in 1882 his life was insured for two thousand dollars. The prisoner knew this. She was in urgent want of money, and the motive sufja-ested for the crime was to set this insurance money. In order to prove her guilty intention, evidence was admitted that in February, 1885, Mrs. Freeman was taken ill with pneumonia, (/) Rex V. Blandy, i8 St. Tr., 1118 ; Rcxw. Patch, p. ^^(^o^ infra. {j) Rexv. Hfllroyd, 6 Cel. Tr. 167. And see Rex v. Doncl/an, p. 324, infra; and Rex v. Donnall, p. 331, infra. See also Reg. v. Sarah Kibbler, pp. 67, 63, supra, and p. 122, infra. SIMULATION OF EVIDENCE. 121 and was recovering until the prisoner came to nurse her, after which she developed symptoms ot arsenical poisonino- and died ; but the doctor at the time certified death from pneumonia. During Mrs. Freeman s illness, and after her death, the prisoner asked various people to persuade Freeman to come and live with her instead of with his own sister. Immediately after the funeral she urged Freeman to assign the policy of insurance to her. He went to live with her, and assigned the policy to her on May 13th. During Mrs. Freeman's illness, and when she seemed likely to recover, the prisoner said that she had dreamed that Mrs. Freeman would die. After Freeman came to live with her she began to abuse him, and say he would be better dead. On June 17th she sent him to see his mother, '* because they might never meet again." For about three weeks before his death the prisoner professed that she had had " warnings" that Freeman would die. On Monday, June 22nd, Freeman was taken ill, and prisoner at o;.ce said he would never leave the house alive. She attended him until Friday. On that night his sister sat up with him, and gave him his medicine. On Saturday morning he was better, but relapsed about noon, and died before midnight. He died of arsenical poisoning. During the illness she expressed anxiety about the insurance money, as she had failed to get her husband's insurance. In September she received the insurance money, and instead of investing it for Freeman's child (one had died) she used it to pay her own debts. There was no evidence that prisoner had arsenic in her possession at any 122 INCULPATORY MORAL INDICATIONS. time, and she went into the box and contradicted much of this evidence, but she was convicted and sentenced to death (/'). A woman who was con- victed of administering poison with intent to murder had told a witness, at a time when the intended victim had nothing very serious the matter with her, tliat she was not likely to recover, for that foot- steps had been heard on the landing when nothing could be seen, and that that was a token of death (/). The fabrication of simulated facts and appearances calculated to create alarm, or otherwise to give a delusive tendency and interpretation to inculpatory facts, is an artifice frequently resorted to, for the avoidance, neutralization, or explanation of circum- stances naturally presumptive of guilt ; the resort to which is of the most prejudicial criminative tendency, inasmuch as it necessarily implies an admission of their truth, and a consciousness of the inculpatory effect, if uncontradicted or unexplained, of the facts which it thus seeks to divest of their natural signi- ficance. As instances of such simulated facts may be mentioned the pretence of having partaken of a poisonous draught which has caused death [in) ; the self-infliction of slight wounds to raise the inference that the offender had himself been the object of deadly attack [ii) ; the attempt to fix guilt or sus- picion upon others by the groundless suggestion of (/(') The official report of the trial of Sarah Jaiie Robinson, Boston, 1880. (/) Reg. V. Sarah Kibbler, Warwick Autumn Ass., 1889, coram Wills, J. {in^ Rex V. Nairn atui Ogilby, 19 St. Tr. 1284; Reg. v. Wesconibe^ Exeter Sum. Ass. 1839. («) Reg. V. Bolain, Durham Sum. Ass. 1839. SIMULATION OF EVIDENCE. I23 malicious feelinfjs (o) ; the placing- of a razor, pistol, or other weapon in the hand of or near to a dead body to lead to the notion of suicide, and many other such acts. But cunning is "a sinister or crooked wisdom," and not unfrequently the very means employed to prevent suspicion, lead to the discovery of the real fruth. A murderer, to simulate the appearance of suicide, placed a razor in the left hand of a right-handed woman (/). A man was found shot, and his own pistol lying near him ; but, although no person had been seen to leave the house, the suspicion of suicide was negatived by the fact that the ball was too large to have entered the pistol (^/). A very remarkable case of this kind is recorded in the State Trials, which was tried at Hertford Assizes, 4 Car. I., before Mr. Justice Harvey. A woman was found dead in her bed, with her throat cut, and a knife sticking in the floor. Several persons of the family who slept in the adjoining room deposed that the deceased went to bed with her child, her husband being absent, that the prisoners slept in the adjoining room, and that no person afterwards came into the house. The coroner's jury were inclined to return a verdict oi felo de se, but suspicion being excited against these individuals, the jury, whose verdict was not yet drawn up in form, desired that the remains of the deceased might be taken up, and accordingly, thirty days after her death, they were taken up, and the jury charged the prisoners with ip) Rex V. Patch, p. 390, infra. {p) Rex v. Fitter, Warwick Sum. Ass. 1834, coram Taunton, J. {g) Paris and Fonblanque, Medical Jurisprudence, vol. iii. p. 39, 124 IN'CULPATORY MORAL INDICATIONS. the murder. Upon their trial they were acquitted, but so much against the evidence, that the judge let fall his opinion that it were better an appeal (r) were brought than so foul a murder should escape unpunished. Accordingly an appeal was brought by the child against his father, grandmother, and aunt, and her husband. On the trial of the appeal before Chief Justice Hyde, the evidence adduced was, that the deceased lay in a composed manner in her bed, with the bedclothes undisturbed, that her child lay by her side, that her neck was broken, and that her throat was cut from ear to ear. There was no blood in the bed, except a tincture on the bolster where her head lay. From the bed's head there was a stream of blood on the floor, which ran along till it pounded in the bendings of the floor, and there was another stream of blood on the floor at the bed's foot, which pounded also on the floor to a very great quantity ; but there was no communication of blood between these two places, nor upon the bed. A bloody knife was found in the morning sticking in the floor, at some distance from the bed ; but the point of the knife, as it stuck, was towards the bed, and the handle from the bed ; and there was the print of the thumb and fingers of a left hand. It was beyond all question, from the circumstances, that the deceased had been murdered, for if she had committed suicide by cutting her own throat, she could not by any possibility have broken her own (r) For an account of this obsolete process — a survival of the primitive trial by battle — see As/ifordw. Tlwmfoti, i B. & Aid. 405 ; see p. 249, infra. The history of the subject will be found in Pollock and Maitiand Hist. Eng. Law ii. 464 — 481 ; also Hawk P. C. ii. c. 23 ; Stephen Hist. Cr. Law of England i. 244—50. SIMULATION OF EVIDENCE. 125 neck in bed. The father, grandfather, and aunt were convicted and executed [s). In a more recent case the evidence, otherwise doubtful, was rendered quite conclusive by the forgery and fabrication of a letter by the accused. The prisoner was charged with the murder of his wife by arsenical poisoning. The defence was suicide. He had been married twelve years, lived happily with his family, and had an excellent character, and although empty arsenic paper was found in his pocket, his explanation was reasonable, and he was away from home at the time when his wife was first taken ill, while others had opportunities of administering the poison. There was little or no motive shown for the crime, and had the case rested there, the prisoner would probably have been acquitted. But it was proved that soon after the wife's death, he took a purse out of her pocket, and pretended to discover a letter written by her to her sister-in-law which amounted to a confession that she had taken her own life. There was evidence that this letter was in the prisoner's own hand- writing, and it was inconsistent with the woman's dying statements and with other circumstances in the case. He was convicted, and before execution confessed both the murder and the forgery (/). An unsuccessful attempt to establish an a/idi is always a circumstance of the greatest weight against (j) Rex V. Okevia7t and others^ 14 State Trials 1324 ; 10 Hargrat'c's State Trials, App. ii. p. 29. (/) Reg. V. Beamish, Warwick Winter Assize 1S61, coram Willes, J» See Times, December 19th, 1861. Ann. Reg. 1861, p. 250. 126 INCULPATORY MORAL INDICATIONS. the prisoner, because the resort to that kind of defence impHes an admission of the truth and relevancy of the facts alleged, and the correctness of the inference drawn from them if they remain uncontradicted. This defence is frequently fabri- cated, and is liable to many sources of fallacy, which will be more appropriately considered in a subse- quent part of this essay ; and a learned judge has said, that if the defence turns out to be untrue, it amounts to a conviction {u). But it must not be over- looked that — such is the weakness of human nature — there have been cases where innocence, under the pressure of menacing appearances, has fatally com- mitted itself, by the simulation of facts for the purpose of evading the force of circumstances of apparent suspicion. When the defence of an a/idi fails, it is generally on the ground that the witnesses are disbelieved and the story considered to be a fabrication ; and frorn the facility with which it may be fabricated, it is commonly entertained with suspicion, and sometimes, perhaps, unjustly so [z). Circumstances such as those which have been enumerated are justly considered to be incompatible with integrity and Innocence, and referable to a con- sciousness of guilt and to a desire to evade the force of facts Indicative of it ; and they consequently subject the party guilty of them to very unfavourable and Injurious inferences. Occasionally facts are suppressed or tampered (u) Per Daly, B., in J?ex v. Killen, 28 St. Tr. 1040. {x') See Rex v. Robinson^ Old Bailey Sess. Papers, 1824. SIMULATION OF EVIDENCE. 127 with by those concerned in the prosecution, and then the same presumption arises, and generally tells with great force against a case which receives such support. It is customary on every criminal charge to give evidence of the arrest of the prisoner, and of his answer upon arrest to the charge. When evidence of this kind is omitted without adequate explanation, it is always a circumstance of suspicion. A remarkable instance of the kind occurred at the Leeds Spring Assizes, 1886. A man was tried for rape. The evidence appeared almost conclusive. The prisoner alleged consent, which was indignantly repudiated by the prosecutrix — a married woman living with her husband, in whose house the offence was alleged to have been committed. The husband denied that he had ever suspected or accused his wife of infidelity with the prisoner. The case concluded with the evidence of a police inspector who received the prisoner into custody at the station, but without the evidence of the constable who effected the arrest. The judge insisted upon the constable being sent for, and adjourned the case for some hours for that purpose, keeping the jury together (as was then necessary on such a charge) in the meantime. When the constable arrived he proved that on the night of the alleged rape he had been in the street where the prosecutrix and her husband lived, when the husband and wife were having a violent altercation, the husband having turned her into the street, alleging that he had caught her with the prisoner under the most compromising circumstances. Some two hours afterwards the husband and wife had come to him on his beat and made an accusation 128 INCULPATORY MORAL INDICATIONS. of rape ayainst the prisoner. There was no dorbt that the constable's evidence had been deliberately suppressed, and the prisoner was acquitted (y). Section 8. statutory presumptions. Upon the principle of the rule of presumption ag'ainst persons in whose possession the fruits of crime are discovered recently after its commission, many acts have been constituted legal presumptions of guilt by statute, so as to throw the onus of rebut- ting or displacing such presumptions upon the party accused ; such, for example, among many others, as the making or possessing, or buying or selling coining tools or instruments {z) ; the possession of forged bank-notes, knowing the same to be forged, without lawful excuse (a) ; the possession of public stores under the control of any Secretary of State or public department (d) ; the acting or behaving as the master or mistress of a disorderly house (c) ; the finding of instruments of gaming in any places suspected to be used as a common gaming-house (^), and the being found by night in possession, without "lawful excuse, of any picklock, key, crow, jack, bit, or other instrument of housebreaking (^), The (j) R. V. Eli Gledhtll, May 2ist, 1886, coram Wills, J. {z) St. 2 W. IV. c. 30, s. 10. See now 24 & 25 Vict. c. 99, s. 24. {a) St. II G. IV. and i W. IV. c. 66, ss. 12 — 19, and 28. See now t\ & 25 Vict. c. 98, ss. 13 and 45. {b) St. 9 & 10 W. III. c. 41 ; and 39 & 40 G. III. c. 89. See now \}te I'ublic Stores Act, 1875 (38 & 39 Vict. c. 25, s. 7) (c) St. 21 G. IIL c. 49- r./^, St. 8 & 9 Vict. c. 109. {e) St. 14 & 15 Vict. c. 19, s. I. See now 24 & 25 Vict. c. 96, s. 58, STATUTORY PRESUMPTIONS. I2g revenue laws abound with similar instances of presumptions created for the purpose of protecting the public against infractions of those laws. By a remarkable anomaly, probably grounded upon some supposed analogy to the rule alluded to, the sale by a shopman of a book or newspaper con- taining libellous matter, was formerly held to constitute a presumption of publication by the authority of the master, although no evidence were given to show that the sale was with his authority or privity ; it being, however, open to him to contradict such presumption by evidence that the sale was in fact unauthorized, and was not within the scope of the general instructions given to the shopman {/). This carried the doctrine of criminal liability to an unwarrantable extent. Lord Campbell's Act [g), passed in 1843, ^^-^ brought this part of our law into harmony with the other parts of the system, by providing that whensoever, upon any trial of any indictment or information for the publication of a libel under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be com- petent to him to prove that such publication was made without his authority, consent, or knowledge, and that it did not arise from want of due care on his part. (/) Rex\. Alinon, 20 State Trials, 803, at cols. 838 and 842. S. C. 5 Burr. 2686. Rex v. Cvthell, 27 State Trials, 641, is also a good illustration of the Common Law, and is notable for Lord Erskine's speech on behalf of the defendant. Cf. Reg. v. Holbrook, 3 Q. B. D. 60 ; 47 L. J. Q. B. 35, and 4 O. B. D. 42 ; 48 L. J. (2- B. 113. (g) St. 6 & 7 Vict. c. 96, s. 7. For the liability in civil cases, see C.E. K 130 INCULPATORY MORAL INDICATIONS. Of Statutory presumptions this general notice is sufficient, as it is the object of this essay to consider the natural connection between facts and the presumptions to which they naturally lead, and not to enumerate the presumptions created by positive law(//). It Is evident that all such arbitrary presumptions depend for their reasonable force and authority upon the obnoxious character/^/^ sc of the particular actions or circumstances which are thus made the foundations of legal presumptions — upon their strict connection with and relation to some specific legal offence, or the intention to commit such offence — and upon the facility of proof by the accused of matter of legal excuse where such matter exists. In the interpretation of laws which create positive presumptions of guilt, it is essential to distinguish between the letter and the spirit of the enactment ; to such laws the maxim of the Civil Law Is specially pertinent, " sci7''e leges non est earuni verba tenerey sed vim ac potesiatem'' {{). It is not practicable to anticipate all the cases which may fall within the language of the rule, or to anticipate the neces- sary exceptions which a proper regard to the intention of the legislature would exclude from its operation, and which it is reasonable to conclude that the legislature would have expressly excluded Enmiens v. Pontic, 16 O. B. D. 354 ; Vizeiclly v. Mudie's Select Library^ 1900, 2 Q. B. 170. {h) See a copious collection of such presumptions in i Taj lor's L. of Ev., 9th ed. 1895, Part L, ch. 5. (/) Digest. I. iii. 17. STATUTORY PRESUMPTIONS. I3I if they had been foreseen. However peremptory and apparently conclusive, therefore, the language of such enactments may be, it is not allowed to exclude or control the just force and operation of such concomitant circumstances as tend to repel the presumption of the inahis animiLS arising from the bare facts which constitute the presumption {k). These considerations introduce us to what is known as the doctrine of " mens rea,'' after Lord Coke's famous maxim, " actus non facit rcum, nisi mens sit rear It is a general and fundamental rule that the mind must be at fault before there can be a crime, and criminal statutes must usually be construed with that qualification. But it is not an inflexible rule : a statute may relate to such a subject-matter, and may be so framed as to make an act criminal whether there has been an intention to break the law or not. There is a large body of municipal law in the present clay which is so conceived. Bye-laws are constantly made regulating the width of thorough- fares, the height of buildings, and other matters necessary for the general welfare, health, or con- venience, and the breach of them constitutes an offence, and is a criminal matter. In such cases it would, generally speaking, be no answer to pro- ceedings for infringement of the bye-law that the person committing it has bona fide va^idi^ an accidental miscalculation or an erroneous measurement Whether an enactment is to be construed in this seii.se, or with the qualification ordinarily imported (Jc) I'uficndorf, lib. v. c. 12 ; cf. 2 East, P. C. 765. K 2 132 INCULPATORY MORAL INDICATIONS. into the construction of criminal statutes that there must be a guilty mind, must depend upon the subject-matter of the enactment, and the various circumstances that may make the one construction or the other reasonable or unreasonable (/). Regard must be had to the scope of the Act, and to the object for which it was apparently passed (;//). A few illustrations of the application of these principles will be useful, and will show how difficult it is to lay down any absolute rule on the subject. A widow woman was indicted before Mr. Justice Foster under 9 & 10 Wm. III. c. 41 {71), for having in her custody divers pieces of canvas marked with the king's mark, she not being employed by the Commissioners of the Navy to make the same for the kiu'T-'s use. The canvas was marked as charged in the indictment, and was clearly proved to be such as was made for the use of the navy, and to have been found in the defendant's custody. She did not attempt to show that she was within any exception of the Act, as being a person employed to make canvas for the navy ; nor did she olfer to produce any certificate from any officer of the crown, touching the occasion of such canvas coming into her posses- sion. Her defence was, that when there happened to be in his Majesty's stores a considerable quantity of old sails, no longer fit for that use, it had been customary for the persons entrusted with the stores (/) Per Wills, J., in Reg. v. Tohon, L. R. 23 Q. B. D. at p. 173. (w) Per Stephen, J., ibid -sX p. 191. {li] This has been repealed, and its place is now taken by the Public Stores Act, 1875 (38 & 39 Vict. c. 25 s. 7). STATUTORY PRESUMPTIONS. I33 to make a public sale of them in lots larger or smaller, as best suited the purpose of the buyers ; and that the canvas produced in evidence, which had been made up long since, some for table-linen and some for sheeting, had been in common use in the defen- dant's family a considerable time before her husband's death ; and upon his death came to the defendant, and had been used in the same open manner by her to the time of prosecution. The counsel for the crown insisted that as the Act allows of but one excuse, the defendant, unless she could avail herself of that, could not resort to any other ; that, if the canvas were really bought of the commissioners, or of per- sons actinof under them, there ou^ht to have been a certificate taken at the time of the purchase, and that the second section admits of no other excuse. But the learned judge was of opinion, that though the clause of the statute which directs the sale of these things had not pointed out any other way of indemnifying the buyer than the certificate, and though the second section seemed to exclude any other excuse for those in whose custody they should be found, yet still the circumstances attending every case which might seem to fall within the Act, ought to be taken into consideration ; otherwise a law calculated for wise purposes, might, by a too rigid construction of it, be made a handle for oppression. There was no room to say that this canvas came into the possession of the defendant by any act of her own ; it was brought into family use in the life- time of her husband, and continued so to the time of his death ; and by act of law it came to her. Things of that kind have frequently been exposed 134 INCULPATORY MORAL INDICATIONS. to public sale ; and though the Act pointed out an expedient for the indemnity of buyers, yet probably few buyers, especially where small quantities had been purchased at one sale, had used the caution suo-crested by the Act. And if the defendant's hus- band really bought the linen at a pu'olic sale, but neglected to take a certificate, or did not preserve it, it would be contrary to natural justice, after such a length of time, to punish her for his neglect. He therefore thought the evidence given by the defen- dant proper to be left to the jury ; and directed them, that if upon the whole evidence they were of opinion that the defendant came to the possession of the linen without any fraud or misbehaviour on her part, they would acquit her; and she was accordingly acquitted [o). On the other hand, where a woman was indicted under 8 & 9 Vict. c. ioo, s. 44, for receiving more than two lunatics into a house not duly licensed, and the jury found that she did receive more than two persons who were lunatics, but that she believed honestly and on reasonable grounds that they were not lunatics, Mr. Justice Stephen held this to be immaterial, having regard to the scope and objects of the Act, and his ruling was upheld (/). Another important case to the same effect is where a man was convicted under 24 & 25 Vict. c. 100, s. 55, of taking an unmarried girl under the age of sixteen (o) Foster's Discourses on the Crown Law, 3rd ed. 1792, App. p. 439. And see 2 East, P. C. 756. See also per Lord Kenyon in /^ex V. Banks, i Esp. 144, and Coltman, J., in Reg. v. Wiluiot, 3 Cox, C. C. 281, similar cases founded upon the same statute. (J>) Reg. V. Bishop, 5 Q. B. D. 259. STATUTORY PRESUMPTIONS. I35 years out of the possession and against the will of" her father. The evidence showed that the grirl had gone to the prisoner willingly, and told him that she was eighteen, and the jury found that he believed her statement, and that the belief was reasonable. The case was argued before all the judges, who by a majority of fifteen to one upheld the conviction, basing their decision partly upon the history and scope of the Act, and partly upon the ground that even if the girl had been eighteen, the man had done a thing which was wrong in itself The judges fully recognize the doctrine of mens rea, which formed the basis of a lengthy dissentient judgment from the late Lord Esher (^). In 18S9 this question was again very fully debated over a case of bigamy. The defendant married Tolson in i8So, and was deserted by him in 1881. She and her father made inquiries about him, and learned from his brother and from general report that he had been lost in a vessel bound for America, which went down with all hands on board. Six years after his disappearance she married another man, who knew all these circumstances. Tolson afterwards returned. The woman was indicted for bigamy under section 57 of the same Act (be It noted) upon which the indictment in the last case was framed, and was convicted, the jury stating, in answer to a question put by Mr. Justice Stephen for the purpose of raising the point, that they thought that she in good faith and on reasonable grounds believed her husband to be dead at the time of the {g) Reg. V. Prince, L. R. 2 C. C. R. 154. 136 INCULPATORY MORAL INDICATIONS. second marriage. The Court for Crown Cases Reserved, consisting ( f fourteen judges, was divided in oi)inion, the majority of nine holding that the bona fide behef in the death of the husband was a good defence in spite of the clear words of the statute, the reasoning being that the presumption of guilt raised by a statutory prohibition cannot be decided without reference to surrcunding circumstLinces(r). Upon an indictment under the statute 5 & 6 Wm. IV. c. 19, which makes it a misdemeanour in the master of a vessel to leave a seaman behind, and enacts that the only defence which he can set up is the production of the certificate of the consul or other party meniioned in the statute, it was held nevertheless that a defendant might show that it was impracticable to obtain such certificate (^), and this qualification has been introduced into subsequent statutes, 7 & 8 Vict. c. 112, s. 48; 17 & 18 Vict, c. 104, s. 208 ; and the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60, s. 188), which is the present code on this subject (/). (r) Reg. V. Tolsott, 23 Q. B. D. i68. {s) Reg. V. Dtmnett, i C. & K. 425. (/) It is impossible in a work of this kind to discuss all the recent cases which deal with the doctrine of fnens rea in relati' n to statutory offences. At common law it was no defence to an indictment for a public nuisance [e.g. obstructing the highway) that the defendant did not know of it, or that his servants committed it contrary to his express orders. This was the one exception where the civil doctrine of respondeat superior was applied criminally. (Cf. Reg. v. Stephens, L. R. I Q. B. 702.) This is perhaps the clue to the kind of offences under modern statutes to which an innocent mind is no defence. Many acts which are not criminal in any real sense of the word are made punishable, in the public interest as quasi-public nuisances, upon summary conviction (cf. Coppen v. Moore, No. 2, 1898, scientific testimony. i57 Section 9. SCIKNTIFIC testimony. The testimony of skilled or scientific witnesses con- stitutes a very important source of circumstantial evidence, especially in reg^ard to the proof of the corpus delicti in cases of suspected homicide, and in inquiries whether a person is cioli capax. Such evidence in its details belono^s to other depart- ments of science; but as the principles which g-overn its reception and application fall exclusively within the province of jurisprudence, some general observations upon it are necessary. If it be true that proof is nothing more than a presumption of the highest order (?/), a fortiori is such the case with respect to the testimony of skilled or scientific witnesses, which not unfrequently pre- sents a sequence of presumptions grounded upon conflicting opinions, even with regard to the actual state of science. Such testimony is therefore, in its very nature, siii generis^ and, according to the attain- ments, means of knowledge, and character of the 2 Q. B. 306), and, following out the analogy of an indictment for nuisance, there are cases where the proceedings are criminal in form, but are really only a summary mode of enforcing a civil right. (Cf. per Wright, J., in SJicrras v. De Riitzen^ 1895, i Q. B., at p. 922.) The absence of mois rca has been held to be no defence under the Sale of Food and Drugs Act ; see Betts v. Armstead, 20 Q. B. D. 771 ; Pai?i V. Boiightwood, 24 Q. B. D. 353 : while it was a defence under the Licensing Acts in Sherras v. De Ruizcn (sitprd), and Somerset v. Wade, 1894, I Q. B. 574, and under the Contagious Diseases (Animals) Act in Nichols v. Hall, L. R., 8 C. P. 322. See also other cases cited in these references. Cf. pp. 28 and 131, supra. («) See p. 41, supra. 138 INCULPATORY MORAL INDICATIONS. witness, may be of little moment, or deserving of entire and undoubting confidence. Science, moreover, is never final, and new facts are every day found to disturb or modily long- established convictions. Thus Reinsch's test, which liad long been confidently employed for the sepa- ration of arsenic, was, in an important case in the year 1859, discovered to be fallacious without pre- cautions which had not been usual, and it was shown that arsenic found in the particular mixture which was there in question had been set free from the copper employed in the experiment (.r). In many countries, this kind of testimony, techni- cally termed expertise, is invested with a sort of semi-official authority, and special rules are laid down for the estimation of its proving force {y). By the law of England, however, no peculiar authority is given to the testimony of witnesses of this description ; its value is estimated by the same general principles as are applied in estimating the capacity, credit, and weight of all other wit- nesses {z)y and the Courts have wisely repelled all attempts to depart from the established and ordinary rules of evidence and judgment. On a trial for murder, before Lord Chief Justice Tindal, several medical witnesses, who had been present during the [x) Reg. V. Smcf/uirst, C. C. C. Aug. 1859, Sess. Papers. The prisoner was convicted, but was subsequently granted a free pardon, presumably on the ground that llie medical and chemical evidence was not satisfac- tory. See Taylor's Medical Jurisprudence, 4th ed. 1894, vol. i. p. 199. {)') Traite dela Preuve, par Mittermaier, c. 26. {g) See Best on Evidence 8th ed. 1893, pp. 465-471. SCIENTIFIC TESTIMONY. 139 trial and heard the whole of the evidence, but had no other means of forming an opinion on the question, were admitted to testify that in their judgment the prisoner was insane. But the pro- priety of admitting such evidence having been made the subject of discussion in the House of Lords, the question was submitted to the judges, who were of opinion that a medical witness could not in strictness be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or whether he was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and what delusions, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science — as to which such evidence is admissible — but that where the facts are admitted, or not disputed, and the ques- tion becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as matter of right (a). On a subsequent occasion, Mr. Baron Alderson, v/ith the concurrence of Mr. Justice Cresswell, refused to allow a witness to be asked whether, from all the evidence he had heard, both for the prosecution and defence, he was of opinion that the prisoner at the time he committed the {a) Res;: v. ArNaghicn, 10 CI. & F. 200-21 1 ; i C. & K. 130, note {a) ; 8 Scott, N. R.59S. 140 INCULPATORY MORAL INDICATIONS. act was of iinsoiiiul mind, and said that the proper mode is to ask w hat are the symptoms of insanity, or to take jjarticiilar facts, and, assuming them to be true, to ask whether they indicate insanity on the part ot the prisoner ; but to take the course suggested, he said, was really to substitute the witness for the jury, and allow him to decide upon the whole case ; that the jury must have the facts before them, and that they alone must inter- pret them by the general opinions of scientific men {d). Upon a trial for murder, where the death was alleged to have been caused by suffocation, a physician who had attended in court and heard the evidence, was asked his opinion as to the cause of death ; but Mr. Justice Patteson expressed him- self very strongly upon the unsatisfactory nature of such evidence, the witness not having seen the body, and his opinion being founded on the facts stated by other witnesses {c). These cases have been followed by a series of determinations in which such evidence has been held to be inadmissible {d). The reasonable principle appears to be, that scientific witnesses shall be permitted to testify only to such matters of fact as have come within their own cognizance, or as they have acquired a know- ledge of by their reading, and to such inferences from them, or from other facts provisionally assumed (J?) Reg. V. Fiances., 5 Cox, C. C. 57. (t) Reg.\, Ne-wion^ Shrewsbury Spring Assizes, 1850, see pp. 148-154, infra. {d) Reg. V. Pate, C. C. C. 12 July, 1850 ; Doe d. Bainbridge v. Bain- h uige, 4 Cox, C. C. 454 ; Reg. v. Layion, ib. 149 ; Sills v. Broix n, 9 C. &P.601. SCIENTIFIC TESTIMONY. I4I to be proved, as their particular studies and pursuits specially qualify them to draw ; so that the jury may thus be furnished with the necessary scientific criteria for testing the accuracy of their conclusions, and enabled to form their own independent judgment by the application of those criteria to the facts established in evidence before them. But where the witnesses are men of unquestionable character and ability, it can hardly be material whether the question is asked in a more or less direct form ; especially as there can be no difficulty in so shaping the question as to mask, while it substantially involves, the precise objection ; and in several subsequent cases medical witnesses have been permitted without objection to give their opinions as to the sanity of parties charged with crime, as grounded upon the evidence that had been adduced both for the prosecution and the defence. Such evidence is however technically irregular, and an objection to it must, if made, prevail {e). In other medical cases, as for instance where there is a charge of negligence against a medical man or in any case involving scientific opinion, the proper way to elicit the witness's evidence is to put a hypothetical case to him assuminor a state of facts identical with those admitted or proved before the Court, and to ask his opinion on those facts. Such a course is free from objection, and an answer so obtained is more satisfactory than an opinion grounded upon what the witness may have heard, the value of which () Reg. V. Newton, Shrewsbury Spring Assizes, 1850. Two former juries, at the Assizts in the preceding year, had been unable to agree, and had been discharged — a circumstance unparalleled, it is believed, in English jurisprudence. AMERICAN NOTES. [Note to Chapter III.] Motive — In General. " When there is a question whether any act was done by any person, the following facts are deemed to be relevant ; that is to say — any fact which supplies a inotiv^e for such an act, or which constitutes preparation for it ; any subsequent conduct of such person apparently influenced by the doing of the act, and any act done in consequence of it by or by the authority of that person." Stephen's Dig. Evid. Art. 7. Motive may be shown (\>\t% et al V. People, 122 111. i. In the Chicago Criminal Court, eight anarchists were found guilty of murder, seven of them being condemned to death. The seven were August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, and Louis 154/' AMERICAN NOTES. Lingg. Tiie other, condemned to fifteen years' imprisonment, was Oscar VV. Necfe. On May ist, 1886, many workmen in Chicago struck to obtain a reduction of their working day to eight hours. There was great exciten>ent, and many meetings and speeches. On the 4iii of May, such a meeting was iield at the Haymarket on Randolph St., in Chicago. This meeting was addressed by several of the defendants, and during tlie address of Spies a charge was made on the crowd by 1 80 pohcemen. Bombs were thrown and guns fired at the pohcemen, and six jiolicemen were killed and six wounded. The defendants were tried for the murder of one of these policemen, Michael J. Degan. The corpus delicti was established by undisputed evidence. Degan was killed by a bomb ; of that there was no doubt. It seemed equally well established that not one of the defendants threw the bomb, but they were charged as accessories. It was shown that they were all members of several anarchistic societies, particularly one known as the International Arbeiter As- sociation, often called the "Internationals" and the "I. A. A." This association was divided into groups, of which there were about eighty in the United States. Certain members of each group were armed and drilled regularly. The most proficient of these armed groups, including the defendants, were also members of a more exclusive organization known as the " Lehr und Wehr Verein " Each member had a Springfield rifle and other weapons, and each was known by number only. The object of these societies was the destruction of organized society and the right of private property. The members openly and secretly advocated the destruction of property, the murder of officers of the law and of property owners, and the general use of deadly weapons, dynamite, bombs, and other explosives. The grou;) of defendants published three incendiary news- papers, — Tlie Arbeiter Zeitnng in German, published by Spies, Schwab, Fischer, and Neebe; T/ie Alarm in English, published by Parsons and Fielden ; and a still more inflammable sheet called T/ie Anarchist, published by Engel. These papers published the signals by which the anarchists were called together at various times, the signal for the meeting of May 4th being " Ruhe." They constantly advocated social revolution and war upon the AMERICAN NOTES. 154^ police ami the inililia. Their articles, written by tlie defendants, contained hundreds of expressions like the following: "Daggers and revolvers are easily to be gotten, hanil-^renades are cheaply to be produced ; explosives too can be obtained." " Working- men, arm yourselves." "We wonder whether the workingmen will at last bupply themselves with weapons, d3namite, and prussic acid." '• If we do not bestir ourselves for a bloody revolution we cannot leave anything to our children but poverty and slavery. " " One man armed with a dynamite bomb is equal to one regi- ment of militia." " Dynamite is the emancipator. " " Assassina- tion will remove the evil from the face of the earth." Articles were published on " How to use dynamite properly,"' *' Manufacturing Bombs," "Exercise in Arms," and extracts were published from the book of Herr Most giving detailed instructions in the inanufacture and use of bombs and other weapons. In many public speeches the defendants had advocated the killing of the police and the militia, using the same arguments and the same language as in their written editorials. The date for beginning tlie "social revolution" was May 1st, 1 886, for the reason that various labor unions were to strike at that time for the eight-hour day. These defendants did not ap- prove of the eight-hour agitation, except as a means that they could use to bring about total destruction of society. They ex- pected the discontent and want accompanying the strike to drive many workmen to the ranks of the Internationals. The defend- ants urged all to procure arms for the successful resistance of the authorities during the continuance of the strike. They even made arrangements to purchase guns in large quantities. In the meantime they had all been experimenting in the manufacture and explosion of bombs. Particularly the defendant Lingg nad been so employed. It became material to show that the bomb with which Policeman Degan was killed had been manufactured by Lingg. To tiiis end it was proved first that the bomb was round. Several wit- nesses who saw it thrown so described it, and moreover, it was not of the material of which ordinary gas-pipe bombs are made. The manufacture of round bombs requires greater skill and greater secrecy. Lingg was shown to have manufactured such round bombs in 154^' AMERICAN NOTES. large numbers. It was also shown that a basketful of his bombs had been carried to the Haymarket meeting. In the next place, the bomb was exploded by means of a fuse. The bombs that IJngg had constructed were all made of two semi-globular shells fastened together, filled with dynamite, and fired by m^ans of a fuse passed through a hole bored for the purpose and attached to a fulminating cap. Furtlier, the pieces of the bomb taken from Degan's body were of the same chemical composition as the bombs made by Lingg. They were composed of tin and lead, with traces of antimony, iron, and zinc. There is no commercial substance containing all these ingredients. In Lingg's bombs the tin had been added to the lead to procure sufficient resistance for explosion. The bomb that exploded had on it a small iron nut, which was extracted from the body of a bystander. This indicated tliat the two semi-globular halves of the bomb had been fastened together with a bolt. Practically all of the bombs made by Lingg, and later discovered, were made of the two semi-globular halves, bolted together, and this nut taken from the body of the bystander exactly fitted those bolts. Lingg himself had been seen making such bombs, with a handkerchief over his face to prevent the inhalation of gas. He had bought dynamite. A poisonous gas exhales from dynamite. The conclusion follows that he put dyna- mite in the bombs that he was seen to make. In Lingg's room, after the murder, were found various articles, among them the following : a cold-chisel, a file, shells, loaded cartridges, sheets of lead, bolts, two empty gas-pipe bombs and two loaded with dynamite, a rifle, a round bomb loaded with dynamite, a piece of block tin, a piece of candlestick composed of tin, lead, antimony, and zinc, fuse of various lengths, and ful- minating caps. He had every ingredient necessary for the making of bombs like the one that killed Degan. Differences in the exact amounts of these ingredients in the different bombs would be accounted for by the fact that he made each semi-globe separately with a small ladle over the kitchen stove, casting each in a small clay mould made by himself. Lingg's purpose in making ihe bombs is to be found from the purposes for which the International Arbeiier Association existed. AMERICAN NOTES. I545 These have been before stated, and were made apparent from the publications and speeches of the other defendants. 'I'here was evidence of a distinct plan on the part of the de- fendants to attack the police of the whole city on the night in question. Members of the Association helped themselves to bombs brought by Lingg to the rendezvous, and were to make separate attacks upon the police stations, gradually concentrating to fight in the centre of the city. This plan had to be changed because the police were concentrated near the neighborhood of the Haymarket. There was a vast array of evidence of the foregoing sorts, and the defendants were convicted under a statute of Illinois mak- ing accessories punishable as principals. Tiie Court found that Degan's death was directly brought about by the conspiracies and plans of the defendants and other " Internationals." The bombs were made and obtained in pursuance of the plan. The meeting was called at the Haymarket on the appointed evening. That day the signal "Ruhe" was printed, to begin the revolution. In pursuance of the plan, and varying from it only as was made nec- essary by the location of the police, a bomb was first hurled at them and then the " Internationals" opened fire with guns. The jury were justified in believing that the bomb was thrown either by a member of the conspiracy or by an agent employed to throw it. This case aroused the greatest of interest and excitement. The accused were found guilty and executed, as already stated. Declarations and Acts Indicative of Guilty Consciousness or Intention. After the doing of an act has been proved, to show that a cer- tain person did it, a prior declaration of his intention to do it may be proved. Dodge v. Bache, 57 Pa. St. 421. Premeditation, Intent, and Malice. Malice, deliberation, or premeditation must in nearly all cases be shown by circumstantial evidence. The number of circum- stances necessary to show this will of course vary. " One case may be proved by a long train of circumstances and events, an- other by a few sharp and startling facts, and in still another the jury may find in the very act of killing, in the manner in which it 154^ AMERICAN NOTES. was done, the weapon used, the number of blows and wounds, the lime and place where effected, tiie disposition of the victim, and the objects accomplisiied, everything requisite to satisfy them of the presence of deliberation and premeditation as components of the crime." People v. Walworth, 4 N. Y. Crini. 355. The nature of the weapon, the number of blows given, and pre- vious conduct are relevant to prove malice and deliberation. State V. Greenleaf, 71 N. H. 606 ; Com. v. Kilpatrick, 204 Pa. fet. 218 ; Thomas v. State (Tex.), 72 S. VV. 17S. The number and position of the wounds on the body of the deceased may be shown to prove the deadly intent with which the defendant fired. People v. Walters, 98 Cal. 138. Declarations of Accused to Prove his Intent or Malice. Declarations of one accused of murder made before the crime are admissible to prove intent. State v. Ridgely, 2 Har. &: McH. 120. The testimony of a witness who overheard the defendant say he was going to kill the deceased and ask for some shells is admissi- ble. Davis V. State, 126 Ala. 44. Proof of Intent — Declarations. In the case of Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, which was a suit on an insurance policy, the defence of the company was that the insured, Jno. W. Hillmon. was still alive, but that he had killed one Walters, and the body of the latter had been buried as that of Hillmon. To prove that this body was not that of Hillmon, the following evidence was held admissible; that Walters disappeared at about that time and was not heard from afterwards; that it had been his intention to go on a trip with Hillmon at that time, as was evidenced by his letters to his sister and to his betrothed, and that the body buried was similar to that of Walters. The letters expressing his intention to go with Hillmon on the very trip where Hillmon was claimed to have been killed was held admissible. Declarations showing malice towards the victim are admissible (Mead v. Husted, 49 Conn. 337 ; State v. Hoyt, 46 Conn. 330 ; Com. V. Goodwin, 14 Gray (Mass.), 55 ; Com. v. Holmes, 157 Mass. 235) ; and so is a declaration of intention to do the act. Mills V. Sword Lumber Co., 63 Conn. 108. AMERICAN NOTES. 154" But a tleclaration that one will not do a certain act is not ad- missible to show that he did not do it. Fowler v. Madison, 55 N. H. 171. Purpose on Leaving Home. When an act is part of the res gestce, statements explanatory thereof and concomitant therewith are admissible. Oral and writ- ten statements made on leaving home as to purpose and place of going admitted. Hunter v. State, 40 N. J. L. 495. Shiie of Mind in Homicide. The State may show that the accused was armed and vindictive shortly before the homicide. Kernan v. State, 65 Md. 253. The existence of lawsuits between parties is admissible to show their state of feeling. State v. Zellers, 7 N. J. L. 220. A letter written a month before the homicide admitted to show the state of defendant's mind toward the deceased. Com. v. Krause, 193 Pa. St. 306. Evidence of prisoner's being armed and in a vicious humor just before the offence is admissible, even though it incidently dis- closes another crime. Kernan v. State, 65 Md. 253. Allusions to a Contemplated Act. Where defendant was charged with the murder of his father, ob- scure allusions made by him to some coming event were admitted. " The fact that the language might possibly have an innocent meaning did not prevent its consideration by the jury, who would of course be called upon to decide whether such was the fact, or whether it was a dark hint thrown from a mind that already felt the shadow of the coming tragedy." State v. Hoyt, 47 Conn. 518. Defendant was accused of having committed a crime for hire. His statement that he was soon to receive some money was admitted. State v. Green, 92 N. C. 779. In State v. Hayward, 62 Minn. 474. it was shown that several months before the crime in question the accused had consulted with a hack-driver about letting his team run away with a certain individual over a bluff into a lake, and had asked him how much he would take for the horses and hack. This was admissible to show that the accused contemplated murder. 154^ AMERICAN NOTES. Possess iof I of Knowledge which only the Criminal Could Have. Where one is charged with a burglary and homicide, he may be shown to have had a guilty knowledge of the location of objects in the house entered. State v. Miller, loo Mo. 606. Defendant, charged with the murder of his wife, was shown to have married again within three weeks after her disappearance, and to have said that she would never come back because she was dead. Wilson v. State, 43 Tex. 472. Conduct Indicating Guilty Knowledge. Where the defendant was charged with strangling a woman, on September lyih, it was admitted in evidence that on September 22d the defendant remarked after a row had occurred in a grocery, that he could easily rid the grocery, and " could kill a man by throwing him on the ground, jamming his knees into him, and knocking the breath out of him, then grasping him by the throat and his breath would never return." The evidence showed that this may have been the manner in which the deceased was killed. Moore v. State, 2 Ohio St. 500. Subsequent conduct showing consciousness of guilt is admissible. McCabe v. Com., 8 Atl. 45. Where a body was found in a well, it was shown that prior to the discovery the defendant was seen looking into the well ; that when another left the house with a lantern the defendant said he knew that other was going to look into the well ; and that after the discovery, although others went to the well, the defendant did not. Com. V. Umilian, 177 Mass. 582. " Sometimes a person is detected as the author of a crime by showing an unusual anxiety to discover the perpetrator ; at other times the discovery is led to by the person showing too much in- difference. In some instances the observation that the person appears to know too much about the transaction leads to the dis- covery ; at other times the inquiry is started by his appearing to know too little. These are generally acts that in themselves show no disposition to do mischief; but it is because they are unnatural, because they tend to the conclusion that they are produced by a mind conscious of its guilt, that they are provable against the accused." Moore v. State, 2 Oliio St. 502. In this case defend- AMERICAN NOTES. 154W ant's conduct when he was told that the body of the deceased had been found was given in evidence. In State v. Miller, 156 Mo. 76, the defendant was shown to be the murderer by proof of threats and motive and by the guilty conscience he evinced when the search of a certain well was pro- posed. He asserted that the well had damps in it, and that it would be dangerous to go into it. In the well was found an axe helve with which the murder was don-e. Fo re ktww ledge of Death. In a recent case reported in the daily papers, it appears that a man in Chicago was accused of marrying and murdering eight wives in as many years. The means used by him seemed to be poison, yet if so, it defied chemical analysis. But he had married the wives under different names, and his operations were discovered through his action in advertising under a new name for a ninth wife, while his eighth wife was still lingering in sickness and three days before her death. Apparently he was very confident that she would soon be dead, and it would seem that his previous expe- riences warranted his confidence. Such premature confidence is strong evidence of guilt. In this case the advertisement was an- swered fortuitously by his still living wife's own sister. Where the defendant was charged with the murder of her sister by poison in pursuance of a scheme to secure insurance money, one of the strongest circumstances against the defendant was the fact that several times while taking care of her sister she said she knew her sister would never get well and that she had had a terrible dream warning her of her sister's impending death. At the time her sister was seemingly much better, but shortly after she had a sudden sinking spell and died. Com. v. Robinson, 146 Mass. 570. The defendant in a murder case may be shown to have said that he wished the deceased would die and that some day the deceased would be found dead in his fields. Wade v. State, 65 Ga. 756. Where the deceased was a material witness against the defend- ant in a former trial, it was shown that the latter had said the deceased would never appear at that trial. Caldwell v. State, 28 Tex. App. 566. I54.r AMERICAN NOTES. Malignant Indifference. Where tlic defendant was charged with the murder of his wife it may be shown that on the day after her death he shed no tears and was indifferent, and tliat when one remarked to him that it was a sad affiair at iiis house, he repHetl, "Yes, I had a load of oats stolen." People v. Greenfield, 85 N. Y. 75, 39 Am. Rep. 636. Where the defendant was charged with poisoning his seventeen year old wife during her confinement, it was allowed to be proved that he had threatened to send her home to her father, had called her " a d — d big-footed scjuaw, had forced her to do dangerous labor out-doors in insufficient clothing, and that when she was dying . . . he commenced talking about his orchard and improving his home, and put on a jovial and frivolous air." State v. Cole, 63 Iowa, 695. Danger of Giving Demeanor too much Weight. " Such indications, however, are by no means conclusive, and must depend greatly upon the mental characteristics of the indi- vidual. Innocent persons, appalled by the enormity of a charge of crime, will sometimes exhibit great weakness and terror, and those who have been crushed with the weight of great sorrow will manifest the greatest composure and serenity in their grief, and meet it without the shedding of a tear." Greenfield ?'. People, 85 N. Y. 75. In this case the defendant was accused of killing his wife, and it was allowed to be shown that he shed no tears. Threats — General Authorities. Threats to do the act may be proved. Caverno v. Jones, 61 N. H. 623; State v. Day, 79 Me. 120; State %k Bradley, 64 Vt. 466, 24 Atl. 1053 ; Mead v. Husted, 49 Conn. 337 ; State v. Hoyt, 46 Conn. 330 ; State v. Hawley, 63 Conn. 49 ; State v. Kallaher, 70 Conn. 398 ; State v. Fry, 67 Iowa, 475 ; People V. Eaton, 59 Mich. 559 ; Com. v. Holmes, 157 Mass. 233 ; Com. v. Crowe, 165 Mass. 140; Com. v. Crossmire, 156 Pa. 304; School- craft V. People, 117 111. 271; State v. Harrod, 102 Mo. 590; State V. McKinney, 31 Kan. 570. Where the defendant took no part in the act of murder, he may be shown to have been an accessory by his previous acts, declarations, and threats. State v. Prater, 52 W. Va. 132. AMERICAN NOTES. 154^ The defendant charged wilh assault with intent to kill may be shown to have challenged the prosecuting witness to meet him in a dark alley. Low v. State (Tex.), 20 S. W. 366. The State may show that the defendant had previously made threats against the deceased to prove malice or disi:)osilion toward the deceased. State z-. Sullivan, 5 i Iowa, 142 ; Babcock z'. People, 13 Colo. 515 ; State v. Stockhouse, 24 Kan. 445 ; State v. Agnew, 10 N. J. L. J. 165 ; Stewart v. State, i Ohio St. 66. General Threats. Threats may be proved even though they were general in nature and made no specific mention of the deceased, unless it is evident that they had no connection with the crime in question. Jordan v. State, 79 x-Ma. 9 : State v. Windahl, 95 Iowa, 470 ; State v. Hymer, 15 Nev. 49; Hopkins v. Com., 50 Pa. g, 88 Am. Dec. 518; Snodgrass v. Com., 89 Va. 679. The State may show that defendant threatened to kill somebody before night, though he did not mention the deceased. State v. Vance, 29 Wash. 435. The defendant may be sliown to have said that he would " kill a man before sundown." Hodge v. State, 26 Fla. 11. Threats are admissible though not made directly against the de- ceased. Hopkins v. Com., 50 Pa. St. 9. The defendant may be shown to have said that he was going to get even with somebody, though no name was mentioned. State V. Harlan, 130 Mo. 381. Threats against a Class. One on trial for killing a policeman may be shown to have said that he would " kill any policeman who tried to arrest him again." State V. Grant, 79 Mo. 113, 49 Am. Rep. 218, Threats against Third Persons. Generally threats made by the defendant against persons, not in any way involved in the crime with which he is charged, are not generally admissible against him. State v. Driscoll, 44 Iowa, 65 ; Carr v. State, 23 Neb. 749 ; State v. Barfield, 29 N. C 299 ; Abernathy v. Com., loi Pa. St. 322. A threat to shoot another constable than the one making the 154" AMERICAN NOTES. arrest is admissible as against one charged with shooting the officer arresting him. Palmer v. People, 138 111. 356, 32 Am. St. Rep. 146; State 7'. Partlow, 90 Mo. 608, 59 Am. Rep. 31 (similar case). Where there is evidence tending to show that the defendant killed the deceased believing him to be another, threats by the defendant against that other are admissible. Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45. Threats made by defendant to kill A are not admissible on his trial for the killing of B. Abernathy v. Com., loi Pa. St. 322. Threats agai?ist Prosecuting Attorney. It is error to admit threats by the accused against the prosecuting attorney made subsequent to the crime unless there is something to show an intent to prevent investigation or a consciousness of guilt. Gawn V. State, 7 Circ. Dec. 19, 13 Ohio Circ. Ct. 116. Threats to Commit a Different Crime. A threat to rob is admissible on a trial for murder. Com. v. Farrell, 187 Pa. St. 408. Threats with a Different Weapon. Where the defendant is charged with murder by poisoning, it is proper to show that he had threatened the deceased with a sling shot. Le Bean v. People, 34 N. Y. 223. Exhibition of a Weapon. A threat is more significant if a deadly weapon is exhibited at the time. Benedict v. State, 14 Wis. 459. The previous possession of a gun with threats to kill the de- ceased may be proved. People v. Fitzgerald, 138 Cal. 39. Unconnnunicated Threats. Uncommunicated threats are admissible to show motive and intention. Com. v. Keller, 191 Pa. St. 122. Threats and the purchase of ammunition by the deceased are not admissible on behalf of the accused when he did not know of either. Turpin v. State, 53 Md. 462. And see Notes to Chapter 5. AMERICAN NOTES. 154 a* Time of Making Threats. Where thirteen years before the crime the accused had said " he would like to put a ball through his father's heart, but the heart was so much harder than the ball that he thought it would not penetrate it," a jury may well give very little weight to such language because of its remoteness. Goodwin v. State, 96 Ind. 550- Threats of the defendant against the deceased may be proved, even though they were made weeks or even months before the crime, in case any connection whatever can be made between the threats and the act. The lapse of time affects only their weight as evidence. Karr v. State, 106 Ala. i ; White v. Terr., 3 Wash. T. 397 ; Tuttle V. Com. (Ky.), 33 S. W. 823. Threats may be given in evidence irrespective of the length of time since elapsed. " If a long period intervened, during which there were opportunities of doing the threatened injury, and there was no attempt to do it, and no repetition of the threat, it would be but a slight circumstance in connecting the accused with the injury, and there would be more reason for regarding it as having been a mere careless, thoughtless utterance or idle bravado, or ebullition of temporary passion. The length of time would mipair its probative force, but would not render it inadmissible." Redd V. State, 68 Ala. 492. Threats made four or five years back held too remote. Mc- Masters v. State (Miss.), t^i So. 2. Previous Quarrels and Ill-Feeling. A previous difficulty between the defendant and the deceased is admissible to show motive and malice. Finch v. State, 81 Ala. 41 ; White v. State, 30 Tex. App. 652 ; State z/. Ackles, 8 Wash. 462 ; Brown v. State, 51 Ga. 502 ; Rone v. Com., 70 S. W. 1042. But some connection between that difficulty and the homicide must be shown. Flint v. Com., 5 Ky. Law. Rep. 51 ; Pound v. State, 43 Ga. 88 ; Hudson v. Com., 69 S. W. 1079. Previous ill-feeling and malice toward the deceased may be proved. State v. Cole, 63 Iowa, 695 ; Holmes v. State, 100 Ala. 80 ; State v. De Angelo, 9 La. Ann. 46 ; Aycock v. State, 2 Tex. App. 38 1. 154^* AMERICAN NOTES. Dissatisfaction with a previous settlement for wages may be proved. Hudson v. State (Tex.), 70 S. W. 764. Tlie State may show that the deceased liad shortly before chal- lenged the vote of the defendant. Thompson v. State, 55 Ga. 47. A disputed account between defendant and deceased admitted to prove ill-feeling. State v. Gooch, 94 N. C 987. It may be shown that at a previous trial where defendant was a witness, the deceased gave evidence to impeach defendant's testi- mony and the latter was very angry. Rea v. State, 76 Tenn. 356. Feuds. Where the defendant and the deceased were aligned with two parties who were involved in a continuous feud, previous fights of other members of the two parties may be proved. McGinnis v. State, 31 Ga. 236. The origin of a continuous feud between the parties may be shown. Coxwell v. State, 66 Ga. 309. Remote Quarrels. Evidence of remote quarrels is not admissible unless they are connected with the homicide. Horton v. State, no Ga. 739; Woodward v. State (Tex.), 58 S. W. 135. Evidence of a previous difficulty is admissible, even though it be a remote one. People v. Brown, 76 Cal. 573. Details of the Previous Quarrels. The circumstances and merits of the previous difficulty are not admissible (Tarver v. State, 43 Ala. 354 ; McAnally v. State, 74 Ala. 9 ; Stewart v. State, 78 Ala. 436 ; People v. Thomson, 92 Cal. 506) ; but sucli details may be admissible to prove threats and ill-feeling. State v. Anderson, 45 La. Ann. 651. The defendant need not be given an opportunity to cross-ex- amine as to the details and circumstances of a previous difficulty between him and the deceased. Com. v. Silk, in Mass. 431. Wife Murder. Previous bad feeling between the defendant and his wife may be proved. Shaw^-. State, 60 Ga. 246 ; Painter v. People, 147 111. 444. Where defendant is charged with the murder of his wife, it may AMERICAN NOTES. 154^* be shown lliat within two months tliere had been bruises on her body made l)y iiim. Philhps -'. State, 62 Ark. 119. Threats of defendant to shoot his wife and their previous domes- tic infehcity may be proved. People v. Simpson, 48 Mich. 474. A previous aggravated assault upon the wife may be proved. Powell V. State (Tex.), 70 S. W. 218. Defendant may be shown to have mistreated his wife for five years preceding the crime. Spears v. State (Tex.), 56 S. W. 347. But defendant's ill-treatment of his wife ten years previously sliould not be admitted. Raines v. State (Miss.), ^^i So. 19. Proof of Similar Acts or Words in General. " When there is a question whether a person said or did some- thing, the fact that he said or did something of the same sort on a different occasion may be proved if it shows the existence on the occasion in question of any intention, knowledge, good or bad faith, malice, or other state of mind, or of any state of body or bodily feeling, the existence of which is in issue or is or is deemed to be relevant to the issue ; but such acts or words may not be proved merely in order to show that the person so acting or speaking was likely on the occasion in question to act in a similar manner." Stephen Dig. Evid. Art. 11. " In such cases it might well happen that a man should shoot another accidentally, but that he should do it twice within a short time would be very unlikely ; so, it might easily happen that a man using a gun might fire a rick of barley once by accident, but that he should do it several times in succession would be very improb- able. So, a person might die of accidental poisoning, but that several persons should so die in the same family at different times would be very unlikely. So, that a child should be suffocated in bed by its mother might happen once, but several similar deaths in the same family could not reasonably be accounted for as accidents. So, in the case of embezzlement, a single false entry might be accidentally made ; but the probability of accident would diminish at least as fast as the instances increased." State v. Lapage, 57 N. H. 245, 294. Other crimes may be relevant if they show the same general purpose. Brown v. Com., 76 Pa. St. 319 ; Kramer v. Com., 87 Pa. St. 299 ; Goersen v. Com., 99 Pa. St. 388. 154^ AMERICAN NOTES. Res Inter Alios. As to the meaning of the maxim, " Res inter alios acta alteri nocere debet," Stephen says in his Appendix, Note VI : " You are not to tlraw inferences from one transaction to anotlier which is not si)ecirically connected with it merely because tiie two re- semble each other. They must be linked together by the chain of cause and effect in some assignable way before you ran draw your inference. "The exceptions to the rule apply more frecjuently to criminal than to civil proceedings, and in criminal cases the Courts are always disinclined to run the risk of prejudicing the prisoner by permitting matters to be proved which tend to show that he is a bad man, and so likely to commit a crime." Other Crimes — /;/ Gefiera/ when not Admissible. Proof of other crimes is not generally admissible. Lamb v. State, 66 Md. 285. Other offences of a like nature are not provable merely to show that defendant would be likely to commit the crime in (juestion. Clark V. State, 47 N. J. L. 556 ; Ryan v. State, 60 N. J. L. 552 ; State V. Sprague, 64 N. J. L. 419 ; Bullock v. State, 65 N. J. L. 557- "The question is, whether A committed a crime. The fact that he formerly committed another crime of the same sort, and had a tendency to commit such crimes, is deemed to be irrelevant." Stephen, Dig. Evid. Art. 10. See Dodge v. Haskell, 69 Me. 429; State V. Renton, 15 N. H. 169, 174; State z;. Wentvvorth, 37 N. H. 197, 209 ; Reed v. Spaulding, 42 N. H. 1 14-124; State v. Lapage, 57 N. H. 245 ; State v. HopIZ N. J. Eq. 56. In Georgia the statute creates a presumption that a charge is well founded if the party fails to introduce evidence in his power, or introduces inferior evidence when he could have produced better. Code 1S95, § 5163, Cr. C. § 989. Failure to Testify. Failure of an accused to become a witness may be considered by the jury. Parker v. State, 61 N. J. L. 308. The failure of a party to appear and testify may be considered, and such failure may be explained on his part by showing circum- stances which prevented him from giving his evidence. Brown v. Barse, 10 App, Div. 444, 42 N. Y. Supp. 306. The non-attendance of the plaintiff who has personal knowledge of the transaction to appear and testify on the trial is a circum- stance to be considered by the jury. Brooks v. Steen, 6 Hun, 516. Failure to Testify. Failure to testify when accused of fraud raises a presumption against one. Dawson v. Waltemeyer, 91 Md. 328. The prosecuting attorney may comment to the jury on the failure of the accused to deny as a witness the allegations of the State. Brashears v. State, 58 Md. 563. Scientific Testimony. "When there is a question as to any point of science or art, the opinions upon that point of persons specially skilled in any such matter are deemed to be relevant facts. Such persons are herein- after called experts. The words 'science or art' include all sub- jects on which a course of special study or experience is necessary to the formation of an opinion, and amongst others the examination of handwriting." Stephen's Dig. Evid., Art. 49. 154^** AMERICAN NOTES. Qiialifuaiion of Experts. In State 7'. Hinkle, 6 Iowa, 380, two physicians were allowed to testify as to tests they made upon tlie stomach of the deceased, for the detection of poison, even though they both atlmitted tliat they were not practical chemists and were inexperienced in de- tecting poisons. After admitting that tiie testimony should be given less weight, the Court says : " But to say that none shall be permitted to give their opinions, except those of the highest pro- fessional skill or those who had given their lives to chemical ex- periments, would, in this country at least, render it impossible, in most cases, to find the requisite skill and ability."' A person in reality a medical expert can give his opinion, although he has no license to practise ; however, the Court will receive his testimony only when made satisfied of his competency as an expert. Pursuit for an indefinite time of the study of medicine, and inci- dentally of nervous diseases, and the fact that he is a manufacturer of medicines as well as the publisher of books on medicine, also that he is the author of one, without giving its subject, however, do not qualify a witness to testify as an expert on insanity. People V. Rice, 54 N. E. 48, 159 N. Y. 400. An undertaker's assistant held not to be qualified as an expert to testify as to when rigor fnortis sets in after death. Com. v. Farrell, 187 Pa. 408. Value of Expert Testimony. In State v. Kelly, 77 Conn. 266, 275, it is said: "The State introduced the testimony of experts to establish the cause of death. The accused asked the Court to charge that the evidence of ex- perts is of the very lowest order, and the most unsatisfactory character, and that all testimony founded on opinion merely is weak and uncertain, and should in every case be weighed with great caution. The Court declined to so charge, and instructed the jury in effect that such testimony was to be weighed and judged like any other, and the same tests applied thereto, the considerations which ought to enter into such judgment being quite fully stated. The Court was correct in refusing the request. State V. Rathbun, 74 Conn. 524." AMERICAN NOTES. 154?^** Although the competency of an expert is a question for the Court, the weight to be given to his testimony is for the jury, and they may consider the extent of his quahfications. The fol- lowing instruction has been upheld : " You are the judges of the weight to be given to such testimony, taking into consideration the knowledge of said witnesses, or the want of it, the disagree- ment of the experts, if any, and also the further fact whether they or any of them are practical chemists, or whether they or any of them have little or great knowledge of chemistry." State v. Cole, 6;^ Iowa, 695. In Parnell ?'. Com., 86 Pa. 260, where the defendant's sanity was to be determined, it was held error for the trial court to express a doubt to the jury as to " wliether you will realize much, if any, valuable aid from them (medical experts) in coming to a cor- rect conclusion as regards the responsibility for crime by this prisoner." In regard to the weight of expert testimony as to insanity, the jury in State v. Windsor, 5 Harr. (Del.) 512, 542, was instructed: " Such opinions, when they come from persons of great experi- ence, and in whose correctness and sobriety of judgment just con- fidence can be had, are of great weight, and deserve the respectful consideration of the jury. But the opinion of a medical man of small experience, or of one who has crude and visionary notions, or who has some favorite theory to support, is entitled to very little consideration." Foisoiiing Cases. A physician, after a minute microscopical examination of the stomach and intestines of the person alleged to have been ' poisoned, may testify that he found "tartar emetic," and that, in his opinion, it was the cause of the death. State v. Fournier, 68 Vt. 262. Experts who have made an analysis may testify as to finding poisons in the body of the deceased. State v. Bowman, 78 N. C. 509- In the case of Com. v. Hobbs, 140 Mass. 443, the defendant was charged with attempting to poison another by mixing white arsenic with certain rye and Indian meal used by that other. It was shown that the defendant had bought two boxes of " Rough 154^"'** AMERICAN NOTES. oil Rats." A chemist was allowed to testify thai he had analyzed certain bread baked from the meal, and also certain samples of the meal, and that they contained white arsenic; also that he had analyzed samples of the trade substance known as " Rough on Rats," though not the contents of the particular boxes bought by the defendant, and found that the substance was white arsenic colored with lampblack. In State v. Cole, 94 N. C. 958, the defendant was charged with murdering his wife with strychnia. Her body was exhumed sev- eral months after death, the stomach removed by two i^hysicians and sealed in a glass jar, and turned over to a chemist and toxi- cologist for analysis. He testified that he had found strychnia, and that it had caused death. An expert was allowed in State v. Slagh, 83 N. C. 630, to state his opinion that a mixture contained certain poisonous ingredients, without having made an analysis, but merely from the taste, smell, and appearance. A physician may testify as an expert as to the symptoms to be expected to follow the administration of a certain poison, or as to the effect of a poison on the human system. State v. Cook, 17 Kan. 392 ; State v. Terrill, 12 Rich. (S. C.) 321. A chemist and toxicologist may testify as to the finding of poison in the stomach of the deceased, and as to the effect it would have upon the human system, even though he is not a physician. State V. Cook, 17 Kan. 392. A physician who has no knowledge of the effects of a certain substance, except that it killed a cat upon which he tried it, can- not, in a homicide case, testify that it was a poison. Rose v. State, 7 Circ. Dec. 226, 13 Oiiio Circ. Ct. 342, 56 Ohio St. 779. There is no presumption that the chemicals used to detect poison were impure. Dyer v. State, 74 Ind. 594. Blood Stains. Experts are allowed to testify that they can determine whether certain blood is human or not, and further, as to whether the blood in question is human. Com. v. Sturtivant, 117 Mass. 122; State V. Knight, 43 Me. i, 133 ; Knoll v. State, 55 Wis. 249, Evidence of physician that certain spots on overalls were blood AMERICAN NOTES. 1^4 zv** admissible. Com. v. Crossmire, 156 Pa. 304; See McLain v. Com., 99 Pa. 86. Evidence of a test by physicians as to a spot of supposed blood on the defendant's clothing is admissible. Beavers v. State, 58 Ind. 530. One not an expert may be permitted to testify that certain spots were blood stains. " We have given due consideration to the able argument of the prisoner's counsel, to the effect that uneducated and ignorant men are incompetent to testify under the circumstances, and that it is alone within the province of experienced and scientific experts to give evidence on the subject ; but we are, after careful investigation, brought to the conclusion, that in many instances the ordinary mind may be able to determine from observation and experience the character of such stains." In People 7'. Gonzales (35 N. Y. 49), it was held that stains of blood upon the person and clothing worn by the accused on the night of the murder may be shown by persons who are not experts, and matters of common observation may ordinarily be proved by those who witness them, without resorting to scientific or mechanical tests to verify them with definite precision. It is said, in the opinion by Porter, J.: " The testimony of the chem- ist who has analyzed blood, and that of the observer who has merely recognized it, belong to the same legal grade of evidence ; and though the one may be entitled to much greater weight than the other, with the jury, the exclusion of either would be illegal." People V. Greenfield, 85 N. Y. 75, 39 Am. Rep. 636. Stains may be proved to be blood, even though no analysis is made. It is for the jury to say whether the proof is sufficient. Gaines z: Com., 50 Pa. 330. Experi7nents. An expert may give an account of experiments performed by him for the purpose of forming his opinion. Sullivan v. Cora., 3 Pa. 284. Evidence of experiments to test the truth of testimony as to cer- tain occurrences may be admissible if it is clear that they were per- formed under the same circumstances as existed at the time of the original occurrence. People v. Levine, 85 Cal. 39 (length of time for a candle to burn a certain amount) ; People v. Morrigan, 29 ic^.r** AMERICAN NOTES. Mich. 5 (possibility of taking a certain pocket-book through a slit in a coat since mended) ; People v. Clark, 84 Cal. 573 (distance at which the discharge of a gun will burn clothing) ; Starr ?'. People (Colo.), 63 Pac. 299 (distance a certain conversation could have been heard) ; Wilson v. State (Tex-), 36 S. W. 587 (same ); State v. Flint, 60 Vt. 304 (time required to walk between two places); Moore v. State, 96 Tenn. 209 (relative positions of accused and deceased when a shot was fired) ; Sullivan z\ Com., 93 Pa. 284 (powder marks). Cause and Nature of an Injury. Expert opinion is admissible as to the nature and effect of an injury, and also as to how it was caused. Williams v. State, 64 Md. 384. A medical expert may testify as to what, in his opinion, caused a hole in the skull of deceased. Davis v. State, 38 Md. 15. Means of Producing Death. Expert evidence may be admissible as to the means by which death was produced. In People v. Durrant, 116 Cal. 179, 210, the Court says as follows : " Dr. Barret was shown to be a prac- tising physician and surgeon. He performed the autopsy upon the body of the dead girl, gave evidence of its condition, and ex- pressed his judgment that the cause of death was strangulation. He was then asked : '■ What in your judgment was the means used for the strangulation?' The witness answered : * I think the means used were hands.' " Rape. Expert testimony is admissible in rape cases to determine whether or not there was penetration. State v. Smith, Philip's (N. C.) Law, 302 ; State v. Knapp, 45 N. H. 148. And in Richardson's Medical Microscopy, 299, it is said that by the use of the microscope, stains upon the female's clothing may be shown with absolute certainty to be seminal stains. AboJiion. Experts may testify as to the drugs and instruments with which an abortion can be produced, and whether an abortion has been AMERICAN NOTES. 1 54;'** performed. State v. Smith, 32 Me. 370 ; Reg. v. Still, 30 Upper Can. (C. P.) 30; Com. v. Brown, 121 Mass. 69. Pregnancy. Scientific testimony is admissible on the question of the con- ditions under which pregnancy may occur. Young 7'. Johnson, 123 N. Y. 232. Identification of IVooct. Skilled woodworkers have been allowed to testify that a block found in a box used for incendiary purposes was originally part of the same stick as other pieces found in the defendant's work- shop, the object of the testimony being to connect the defendant with the crime of arson where an exactly similar box had been used. Com. v. Choate, 105 Mass. 451. CHAPTER IV. EXTRINSIC AND MECHANICAL INCULPATORY INDICATIONS. Inculpatory circumstances of an extrinsic and mechanical nature, are such as are derived from the physical peculiarities and characteristics of persons and things, — from facts and objects which bear a relation to our corporeal nature, and are apparently independent of moral indications. Such facts are intimately related to, and as it were dovetail with, the corpus delicti; and they are the links which establish the connection between the guilty act and its visible moral origin. It is impossible even to classify, and still less to enumerate, evidentiary facts of the kind in question, except in a very general way ; but it may be interesting and instructive, by way of illustration, to advert to some of the principal heads of such evidence, and to some remarkable cases which have occurred in the records of our criminal jurisprudence. One important and admonitory result of such a process will be to show that all such facts are unavoidably associated with attendant sources of error and fallacy. The principal facts of circumstantial evidence of an external character relate to questions of identity — of person — of things — of handwriting — and of time ; but there must necessarily be a number of isolated facts which admit of no specific classification. 156 extrinsic inculpatory indications. Section i. identification of person. In the investigation of every allegation of legal crime, it is fundamentally requisite to establish, by direct or circumstantial evidence, the identity of the individual accused as the party who committed the imputed offence. It might be concluded, by persons not conversant with judicial proceedings, that identi- hcation is seldom attended with serious difficulty : but such is not the case. Illustrations are numerous to show that what are supposed to be the clearest intimations of the senses, are sometimes fallacious and deceptive, and some extraordinary cases haveoccurred of mistaken personal identity {a). Hence the particu- larity, and as unretiecting persons too hastily conclude, the frivolous minuteness of inquiry, by professional advocates as to the ca2isa scienticE, in cases of con- troverted identity, whether of persons or of things. Two men were convicted before Mr. Justice Grose of a murder, and executed ; and the identity of the prisoners was positivel\' sworn to by a lady who was in company wath the deceased at the time of the robbery and murder ; but several years after- wards two men, who suffered for other crimes, confessed at the scaffold the commission of the murder for which these persons were executed {b). (a) Rex V. Wood attd Browft, p. 41, supra ; Rex v. Colemafi, pp. 103 and no, supra. In Reg. v. Markliam (C. C. C. 1856) a man was sen- tenced to four years' penal servitude for uttering a forged cheque, but was subsequently pardoned on the conviction of the real offender. (b) Rex V. Clinch and Mackley, Paris «& Fonblanque, Medical Jurisprudence, vol. iii., p. 144 (note), and Sess. Papers, 1797. IDENTIFICATION OF PERSON. 157 A young man was tried at the Old Bailey, July, 1824, on five indictments for different acts of theft. It ai)i)eared that a person resenibl'no- the prisoner in size and general appearance had called at various shops in the metropolis tor the purpose of looking at books, jewellery, and other articles, with the pretended intention of makin:^ purchases, but made off with the property placed before him while the shopkeepers were engr.ged in looking out other articles. In each of these cases the prisoner was positively identified by several persons, while in the majority of them an alibi was as clearly and pjsitively established, and the young man was proved to be of orderly habits and irreproachable character, and under no temptation from want of money to resort to acts of dishonesty. Similar depredations on other tradesmen had been committed by a person resembling the prisoner, and those persons deposed that, though there was a consider- able resemblance to the prisoner, he was not the person who had robbed them. He was convicted upon one indictment, but acquitted on all the others; and the judge and jurors who tried the last three cases expressed their conviction that the witnesses had been mistaken, and that the prosecutor had been robbed by another person resembling the prisoner. A pardon was immediatel\ procured in respect of that charge on which the conviction had taken place {c) A few months before the last-mentioned case, a respectable young man was tried for a highway robbery committed at Bethnal Green, in which (f) Rex V. Robittson, O.B. Sessions Papers, 1824. 158 EXTRINSIC INCULPATORY INDICATIONS. nei^^hboLirhuod both he and the prosecutor resided. The prosecutor swore positively that the prisoner ■was the man who robbed him of his watch. A youno;' woman, to whom the prisoner paid his addresses, gave evidence which proved a complete alibi. The prosecutor was then ordered out of court, and in the interval another young man, who awaited his trial on a capital charge, was introduced and placed by the side of the prisoner. The prosecutor was again put into the witness-box, and addressed by the prisoner's counsel thus : " Remem- ber, the life of this young man depends upon your reply to the question I am about to put, Will you swear again that the young man at the bar is the person who assaulted and robbed you?" The \Yitness turned his head toward the dock, when beholding two men so nearly alike, he dropped his hat, became speechless with astonishment for a time, and at length declined swearing to either. The prisoner was of course acquitted. The other young man was tried for another offence and executed ; and before his death acknowledged that he had committed the robbery in question {d). Upon a trial for burglary, where there was conflicting evidence as to the identity of the prisoner, Mr. Baron Bolland, after remarking upon the risk incurred in pronouncing on evidence of identity exposed to such doubt, said that when at the bar, he had prosecuted a woman for child- stealing, tracing her buying ribbons and other articles at (if) Paris & Fonblanque, Medical Jurisprudence, vol. iii., p. 143 (note b) ; Amos's Great Oyer of Poisoning (the trial of the Earl of Somerset), at p. 265. IDENTIFICATION OF PERSON. 159 various places in London, and at last into a coach at Bishopsgate, by eleven witnesses, whose evidence was contradicted by a host of other witnesses, and she was acquitted ; and that he had afterwards prosecuted the very woman who really stole the child, and traced her by thirteen witnesses. "These contradictions," said the learned judge, "make one tremble at the consequences of relying on evidence of this nature, unsupported by other proof" (e). As incidental to the establishment of identity, the quantity of light necessary to enable a witness to form a satisfactory opinion has occasionally become the subject of discussion. A man was tried in January, 1799, for shooting at three Bow Street officers, who, in consequence of several robberies having been committed near Hounslow, were em- ployed to scour that neighbourhood. They were attacked in a post-chaise by two persons on horseback, one of whom stationed himself at the head of the horses, and the other went to the side of the chaise. One of the officers stated that the night was dark, but that from the flash of the pistols he could dis- tinctly see that one of the robbers rode a dark-brown horse, between thirteen and fourteen hands high, of a very remarkable shape, having a square head and thick shoulders, that he could select him out of fifty horses, and had seen him since at a stable in Long Acre ; and that he also perceived that the person at the side glass had on a rough shag great-coat {/). (e) Rex V. Sawyer^ Reading Assizes. (/) Rex V. Haines, Paris & Fonblanque, Medical Jurisprudence, vol. iii., p. 144 (note). l6o EXTRINSIC INCULPATORY INDICATIONS. Similar evidence was given on a trial for lii_L;h treason (^') ; and in a case of burglary before the Special C(Miiinission at York, January, 1 8 1 3, a witness stated that a man came into his room in the night, and caused a light by striking on the stone floor with something like a sword, which produced a flash near his face, and enabled him to observe that his fore- head and cheeks were blacked over in streaks, that he had on a dark-coloured top-coat and a dark- coloured handkerchief, and was a large man, from which circumstances and from his voice, he believed the prisoner to be the same man [h). In another [g) Rexv. Byrne, 28 St. Tr. 819. {h) Rex V. Brook, 31 St. Tr. 1135, 1 137; but see " Trait6 de la Preuve," par Desquiron, 274, where it is stated that after the con- demnation of a man for murder, on the testimony of two witnesses, who deposed that they recognized him by the light from the discharge of a gun, experiments were made, from which it appeared that such recognition was impossible. The late learned Recorder of Birmingham (M. D. Hill, Esq., Q.C.) gave the Editor the particulars of a remarkable case, in which he was retained as counsel for a prisoner accused of shooting at a young woman, and in which the intended victim was prepared to swear that she recognized the prisoner by the flash of the gun which was fired at her. The trial, which was to have taken place at the Derby Spring Assizes, 1840, was prevented by the suicide of the prisoner, after the business of the Assizes had begun ; but Mr. Hill was present at a series of experiments made with a view to test the possibility of the alleged recognition, and the conclusion he drew was " that all stories of recognition from the flash of gun or pistol must be founded upon a fallacy." There were many circumstances in the case calculated to produce a strong impression on the young woman's mind that the prisoner was her assailant, and she doubtless mistook the impression so created for ocular demonstration. On the other hand, it is asserted in Taylor's Medical Jurisprudence (4th ed, 1894, vol. i., p. 729) that from information which the author was able to collect on this point, there appears to be no do bt that an assailant may be thus occasionally identified. No doubt it depends largely upon the quickness of individual sight. IDENTIFICATION OF PERSON. l6l case a gentleman who was shot at while driving home in his gig, and wounded in the elbow, stated that when he observed the flash of the gun, he saw that it was levelled towards him, and that the light enabled him to recosfnize at once the features of the accused. On cross-examination he stated that he was quite sure he could see him, and that he was not mistaken as to his identity ; but the prisoner was acquitted (/). A great deal of the value of direct evidence of identification must depend upon the personal appear- ance of the subject of identification. There are some men with peculiarities and characteristics so marked that only a very careless observer (of w^hom, however, there are a great number) could well be wronof about them. There are others — and a far greater number — whose features and persons are of the very commonest types, and who are hardly dis- tinguishable by a casual observer from hundreds to be met every day in the streets. The physical characteristics of the subject of identification may be of the one category or the other, or may belong to any one of the infinite gradations between the two extremes. Fortunately the tribunal has the advantage of seeing the person sought to be iden- tified, and the foregoing considerations can always be brought home to the minds of the jurors. It may not be out of place to mention a remarkable case which illustrates the difficulties surroundino- the determination of personal identity. A man was (z) Reg. V. White., Croydon Summer Assizes, 1839. Mentioned in Taylor's Medical Jurisprudence, 4th ed. 1894, vol. i. p. 729. C.E. M l62 EXTRINSIC INCULPATORY INDICATIONS. tried at Manchester for housebreaking. He was convicted. A part of the indictment alleged that he had been previously convicted of a similar offence. A warder from the convict prison from which it was alleged that the prisoner had been dis- charged on completing his former sentence, deposed that the prisoner was the same man, and that he had served his former sentence as James Williams. The prisoner, who vehemently protested that a mistake had been made, elicited from the warder that upon the discharge of James Williams a list had been made of the marks of identification upon him. The list was produced, and the gaol surgeon was requested to take the prisoner to the cells and report what marks he had upon him. He returned with a list which differed very materially from the warder's list, containing some obvious marks which were not in the warder's list, and not con- taining others which were in that list. In particular the prisoner had upon his stomach a large mark of discolouration (" probably congenital," said the surgeon) which was not in the warder's list. Photo- graphs of James Williams were produced by the w^arder, and at the request of the jury the prisoner was placed in various positions, and under various lights, for the purpose of comparison. In the end the jury found that the prisoner was not James Williams, and he received the mitigated sentence due to a first conviction for an offence of this kind. When in prison he memoralized the Home Secre- tary, complaining of some action on the part of the prison authorities. This led to an investigation, in the course of which a petition from James Williams, IDENTIFICATION OF PERSON. 163 dated from Chatham convict prison, was found in the archives of the Home Office, and both petitions were sent by the Home Secretary to the judge who tried the case. There was not then room for the smallest doubt as to the identity of the prisoner with James WilHams. Not only were the two hand- writings identical, but there was a peculiar vein of thought and character running through both petitions which could hardly by any possibility have been common to two different persons. The man was of the kind known to seamen as " sea lawyers," and with a very peculiar vein of querulousness eminently charac- teristic. There is not the slightest doubt that the warder was right in his identification [j). The editor is glad to be able to add that during his experience of between seventeen and eighteen years on the Bench, he has met with but one instance of mistake upon the question of previous conviction (k). Upon his sending for the offending witness, and speaking to him of the great gravity of such a mistake, the man (a warder from one of the large London prisons) said in extenuation, " My lord, I identify three thousand a year!" The liability to mistake must necessarily be greater where the question of identity is matter of deduction and inference, than where it is the subject of direct evidence. The circumstances from which identity may be thus inferred are innumerable, and admit of only a very general classification. (/) /?. V. Henry Evans, Manchester Winter Assizes, 27th January, 1885, coram Wills, J. ik) R. V. Helsham, Liverpool Autumn Assizes, 12th November, 1885. M 2 164 EXTRINSIC INCULPATORY INDICATIONS. Family likeness has often been insisted upon as a reason lor inOtrrini;- parentao^e and identity. In the DouLi^las case Lord Mansfield said : " I have always considered likeness as an argument of a child's being the son of a parent ; and the rather as the distinction between individuals in the hunian species is more discernible than in other animals ; a man may sur- vey ten thousand people before he sees two faces perfectly alike, and in an army of a hundred thou- sand men every one may be known from another. If there should be a likeness of feature, there may be a discriminancy of voice, a difference in the gesture, the smile, and various other things ; whereas a family likeness runs generally through all these, for in everything there is a resemblance, as of features, size, attitude, and action " (/). But in a case in Scotland, where the question was v/ho was the father of a certain woman, an allegation that she had a strong resemblance in the features of the face to one of the tenants of the alleged father, was held not to be relevant, as being too much a matter of fancy and loose opinion to form a material article of evi- dence (;//). In another Scotch case, however — a trial for child-murder — it was permitted (after proof that the child had six toes) to ask a witness whether any members of the prisoner's family had super- numerary fingers and toes ; though the inference to be deduced was evidently only matter of opinion {n). (/) 2 Collectanea Juridica, 402 ; Beck's Medical Jurisprudence, 7th ed. p. 402. And see Report of the case of Doe d. Day v. Day, Trial by Ejectment involving a question of Legitimacy, &c., Huntingdon Assizes, July, 1797. Printed at Birmingham, 1823. (;«) Rictledge v. CarriitJicrs, Tait's Law of Ev. 2nd ed. p. 441. («) I Dickson's Law of Ev. in Scotland, § 19, p. 14. IDENTIFICATION OF PERSON. 165 A case of capiuil conviction occurred a few years ago where the prisoner had given his portrait to a youth, which enabled the police, after watching a month in London, to recognize and apprehend him(6') ; and photographic likenesses now frequently lead to the identification of offenders. It is well known that shepherds readily identify their sheep, however intermingled with others (/>) ; and offenders are not unfrequently recognized by the voice (ry). Circumstances frequently contribute to identification, by confining suspicion and limiting the range of inquiry to a class of persons ; as where crimes have been committed by left-handed persons (r); or where, notwithstanding simulated appearances of external violence and infraction, the offenders must have been domestics ; as in a case of two persons convicted of murder, who created an alarm from within the house ; but upon whom nevertheless suspicion fell, from the circumstance that the dew on the grass surrounding the house had not been disturbed on the morning of the murder, which must have been the case had it been committed by any {0) Rexv. Arden, 8 London Medical Gazette, 36 ; but identification by photograph alone is regarded with suspicion, and the Court will not act upon it except in very exceptional circumstances. Frith v. Frith, 1896, P. 74- {p) Rexv. Oliver, Syme's Justiciary Report (Scotch), p. 224. {q) Rexv. Brook, 31 St. Tr., cols. 11 24, 1129, 1137. {r) Rex V. Oketnan aftd others, 14 St. Tr., col. 1324; Rex v. Richardson — see pp. 384-389, iufra, and in Rex v. Patch, which is given at length at pp. 390-395, infra. One of the circumstances which connected the accused with the crime was that the murderer must have hidden his body behind the door, and fired the shot with his left hand, or he would have been seen ; and the prisoner was proved to be left-handed. l66 EXTRINSIC INCULPATORY INDICATIONS. Other than inmates (^). On the trial of a gentle- man's valet for the murder of his master, it appeared that there were marks on the back door of the house, as if it had been broken into, but the force had been applied from within, and the only way by which this door could be approached from the back, was over a wall, covered with dust which lay undisturbed, or over some tiling, so old and perished that it would not have borne the weight of a man ; so that the appearances of burglarious entry must have been contrived by a domestic. Other facts conclusively fixed the prisoner as the murderer (/). Identification is often satisfactorily inferred from the correspondence of fragments of garments, or of written or printed papers, or of other articles belong- ing to or found in the possession of parties charged with crime, with other portions or fragments dis- covered at or near the scene of crime, or otherwise related to the corpus delicti (?/) ; or by means of wounds or marks inflicted upon the person of the offender. A coloured man, named Allen, was charged at Cardiff Assizes, in 1889, with the murder of George Kent. He was identified and convicted upon the following evidence : — The dead man's wife saw that her husband's assailant was a black man, and fired a revolver at him. He fell; but afterwards escaped, A few hours later the prisoner was arrested, and {s) Rex V. Swan and Jefferys, 18 St. Tr., col. 1194; and see Mascardus, De Probationibus, Concl. cclxxii. (/) Reg. V. Coiirvoisier. See p. 398, infra. iyU. See Mascardus, De Probationibus Concl. Dcccxxxi. IDENTIFICATION OF PERSON. 167 a bullet extracted from his thigh which fitted the empty cartridge case (x). A woman who was tried for setting the prose- cutor's ricks on fire, had been met near the ricks, about two hours after midnight, and a tinder-box was found near the spot containing some unburnt cotton rag; also, a piece of a woman's neckerchief was found in one of the ricks where the fire had been extinguished. The piece of cotton in the tinder-box was examined with a lens, and the witness deposed that it was of the same fabric and pattern as a gown and some pieces of cotton print taken from the prisoner's box at her lodgings ; that a neckerchief taken from a bundle belonging to the prisoner, found in her lodgings, corresponded with the colour, pattern, and fabric of the piece found in the rick, and that they had both belonged to the same square ; and from the breadth of the hemming, and the distance of the stitches on both pieces, as well as from the circumstance that both pieces were hemmed with black sewing- silk of the same quality (whereas articles of that description were generally sewn with cotton), he inferred that they were the work of the same person. The prisoner was capitally convicted, but, there being reason to believe that she was of unsound mind, she was reprieved {y ). A man was connected with the robbery of a bank, by the fragment of a key found in the lock of one of (x) Reg. V. Allen. See The Times, March 19th, 18 89. {j) Rex \. Hodges,^ SiiwicV. Spring Assizes, \2>iZ, coram Garrow,B. l68 EXTRINSIC INCULPATORY INDICATIONS. the safes, wliicli an Ironmoncrer proved that he had shortly before made for the prisoner (z) ; and a servant-man was connected with the larceny of a number of sovereigns, by the discovery, in the lock of a bureau which had been broken open, of a small piece of steel which had formed part of the blade of a knife belonging to him (a). A young woman was tried at Warwick Summer Assizes, 1887, for the murder of her illegitimate female child. She had been staying at the house of her mother, Charlotte Dodd, at Wellesbourne, a few miles from Warwick. She had the child, then about six weeks old, with her. On the 26th April, carrying her child, she walked with her mother to Warwick, where they stayed some little time at an inn. Not long after- wards the prisoner was seen standing near a bridge over a little watercourse on the Kenilworth road, about two miles from W^arwick. Later in the day she was in Warwick again, without the baby. Her account was that she had taken it to Kenilworth, where "the young man" lived ; that the grandparents had taken the child, and the grandfather had driven her back to Warwick in his trap. *' The young man" did live at Kenilworth, but all the other state- ments were false. On the 28th April the body of a female child was found in the watercourse and under the brido^e. It was not known whose child it was, and, although an inquest was held, the child was buried without being identified — and when (z) Rex V. Heath, Alison's Principles of the Criminal Law of Scotland, vol. i. p. 318. {a) Reg. V. O-iimp, Stafiford Summer Assizes, 185 1, coram Erie, J. IDENTIFICATION OF PERSON. 169 afterwards exhumed, on the 12th May, it was very much decomposed. The child's skull was fractured in such a way as to render it improbable that death was accidental. There were many circumstances tending to incriminate the prisoner, if the child found was hers. The evidence to show that it was her child was as follows: The child was wrapped in a piece of brown paper, and tied round with very fine braid. In the mother's house was found a piece of brown paper corresponding- in quality and appearance with that in which the child was wrapped. On both pieces of paper were a number of stitches of black thread, which had been cut. On the paper in which the child was wrapped was written, " Dodd, passenger to Milverton" — faint, but distinctly visible. Some braid was found in the mother's house, discoloured, but in all other respects corresponding with the braid with which the child's body was tied up. No clothes were found with the child. The prisoner had brought the clothes back to Warwick, saying that the grandparents would not have them, as they had plenty ; which was false. Baby's clothes were found in the mother's house. The prisoner was convicted. The mother was tried with her, but acquitted [d). An attempt to murder, by sending to the prosecutor a parcel, consisting of a tin case containing several pounds of gunpowder, so packed as to explode by the ignition of detonating powder, enclosed between two pieces of paper, connected with a match fastened to the lid and bottom of the box, was brought home to the prisoner by the circumstance that underneath {b) R. V. Fanny Goldsby and Chai-loite Dodd, August and, 1887, coram Wills, J. 170 EXTRINSIC INCULPATORY INDICATIONS. the outer covcriiiLj of brown paper was fuund a jjortion of the Leeds InUlliocuccr of the 5th of Jul)-, 1832, the remaininsj^ portion of which identical paper was found in his house (<:). In other cases identifi- cation has been established by the correspondence of the wadding of a pistol, which stuck in a wouiid, and was part of a ballad, which corresponded with another part found in the prisoner's possession {d) ; and by the like correspondence of the waddino- of firearms with part of a newspaper of which the remainder was found in the possession of the prisoner {e), A Spaniard was convicted of having occasioned a grievous injury to an officer of the post-office, by means of several packets containing fulminating powder, put by him into the post-office, one of which exploded in the act of stamping. The letters, {c) Rex V. Motmtford, reported on a point of law in i Moo. C. C. 441. (<^) Ex relatione Lord Eldon, when Lord Chancellor, in the House of Lords, November loth, 1820. See Hansard Parliamentary Debates, New Series, vol. iii., at col. 1740. Probably Lord Eldon was referring to the case of John Toms, tried at Lancaster Assizes, 23rd March, 1784, for the murder of Edward Culshaw, at Present. The Editor is indebted to E. B. Dawson, Esq., J. P., chairman of the Visiting Justices, for the follow- ing extract from a book kept by the Governor of Lancaster Castle, and now among the registers of that prison : — "Assizes, March 23rd, 1784, John Toms ... 18 years of age . . . convicted and executed March 29th, 1784. N.B. — A very extraordinary fact came out respecting the murder upon which Toms was convicted, viz., he had bought a ballad, and tore part of it off for a wad for the pistol. This wad was found in the deceased's head, which exactly corresponded with the part left in his pocket." The note ends as follows : '■'' Metn. — This Assize lasted from March 23rd to April 3rd. It may be properly called the Black Assize, 19 being assigned for capital offences ; 6 of them received sentence of death, and 3 were executed, viz., Toms, Heys, and Dugdale." (*) Keg. v. Cotirinage and Mossingham, see p. 223, infra. IDENTIFICATION OF PERSON. I7I which were in Spanish, and one of them subscribed with the prisoner's name, were addressed to persons at Havannah and Matanzas, who appeared to be the objects of the writer's mahij^nant intentions. There was no proof that the letters were in the prisoner's handwriting, but he was proved to have landed at Liverpool on the 20th of September, and to have put several letters into the post-otiice on the evening of the 22nd, the explosion having occurred on the 24th ; and there was found upon his person a seal which corresponded with the impression upon the letters, which circumstance (though there were other strong facts) was considered as conclusive of his guilt, and he was accordingly convicted and sen- tenced to two years' imprisonment {/). On a trial for the forgery of a document, the impression of a seal attached to it corresponded with another im- pression upon a packet of papers produced in evidence by the prisoner, and both impressions were taken from a seal in the possession of a member of his family [g). The impressions of shoes, or of shoe-nails, or of other articles of apparel, or of patches, abrasions, or other peculiarities therein, discovered in the soil or clay, or snow, at or near the scene of crime, recently after its commission, frequently lead to the identi- fication and conviction of the guilty parties (//). The presumption founded on these circumstances (/) Rex V. Palayo, Liverpool Midsummer Quarter Sessions, 1836. {g) Rex V. Humphreys^ see pp. 19S-201, infra. {It) Menochius, De Prssumptionibus, lib. v. praes. 31 ; Mascardus, De Probationibus, Concl. Dcccxxxi. ; Traite de la Preuve, par Mitter^ maier, c. 57. 172 EXTRINSIC IN'CULPATORY INDICATIONS. has been appealed to by mankind in all ages, and in inquiries of every kind, and is so obviously the dictate of reason, if not of instinct, that it would be superlluous to dwell upon its imptjrtance. The following remarkable cases illustrate the weight of such mechanical facts, when connected wiih other concurring circumstances leading to the same result. A farm labourer was tried for the murder of a young woman, a domestic servant living in the same service. A little before seven in the evening she went on an errand to take some barm to a neigh- bouring house, about 200 yards distant, but as it was not wanted, she did not leave it, and set out about seven o'clock on her way back. Being about to leave her situation that evening, she had requested the prisoner to carry her box to the gardener's house, about a quarter of a mile distant. Soon after she set out on her errand, the prisoner followed her, carrying her box, but did not reach the gardener's cottacre until after eitrht. On the following morning she was found, lying on her back, drowned in a shallow pit near a footpath leading from her master's house to the gardener's cottage. There were marks of violence on her person, and one of her shoes and the jug in which she had carried the barm were found near the pit. Barm was also found spilt near the spot, and there were marks of much trampling ; and chaff and grains of wheat were scattered about, which were material facts, the prisoner having been engaged the day before in threshing wheat. Impressions were found in the soil, which was stiff and retentive, of the IDENTIFICATION OF PERSON. I73 knee of a man who had worn breeches made of striped corduroy, and patched with the same material, but the patch was not set on straiu^ht, the ribs of the patch meeting the hollows of the garment into which it had been inserted ; which circumstances exactly corresponded with the prisoner's dress. The prisoner denied that he had seen the deceased after she left the house on her errand, and stated that he had been in the interval before his arrival at the gardener's house in company with an acquaintance whom he had met with on the road ; but it was proved that the person referred to, at the time in question, was at work thirty miles off He was convicted and executed (/). A man was tried at Stafford Summer Assizes, 1844, for the murder of an elderly woman, the housekeeper of an old gentleman at Wednesbury. The only inmates of the house were the old gentle- man, a man-servant, and the deceased woman. Her master went from home on a Saturday morning, about half-past nine o'clock, as he was accustomed to do on that day of the week, leaving the deceased in the house alone. Upon his return, a quarter before two, he found her dead body in the brew- house, her throat having been cut and the house plundered. The murder had probably been com- mitted about a quarter past ten o'clock, as the butcher called at that time and was unable to obtain admittance, and about the same time a scream was heard. Traces were found of a man's rieht and left footsteps leading from a stable In a small plantation (/) Rex V. Brindley, Warwick Spring Assizes, 18 16. 174 EXTRINSIC INCULPATORY INDICATIONS. near the front of the house, from which any person leaving the house by the front door could be seen ; and similar footsteps were found at the back of the house leadint]^ from thence across a ploughed field for a considerable distance in a sequestered direction, until they reached a canal bank, where they were lost on the hard ground. From the distance between the steps at the back of the house and in the ploughed t'leld, the person whose footsteps they were must have been running ; the impressions were those of right and left boots, and were very distinct, there having been snow and rain, and the ground being very moist. The right footprints had the mark of a tip round the heel ; and the left footprints had the impression of a patch fastened to the sole with nails different in size from those on the sole itself; and altoofether there were four different sorts of nails on the patch and soles, and in some places the nails were missing. Suspicion fell upon the prisoner, who had formerly lived as fellow-servant with the deceased, and who had been seen by several persons in the vicinity of the house a little before ten o'clock. Upon his apprehension on the following morning, his boots, trousers, shirt, and other garments were found to be stained with blood, and the trousers had been rubbed or scraped, as if to obliterate stains. The prisoner wore right and left boots, which were caretully compared with the footprints ; by making impressions of the soles in the soil about six inches from the original footmarks ; which exactly corresponded as to the patch, the tip, and the number, shape, sizes, and arrangement of the nails. The boots were then placed lightly upon the IDENTIFICATION OF PERSON. I75 orloinal impressions, and here again the correspon- dence was exact. There could therefore be no doubt that the impressions of all these footsteps had been made by the prisoner's boots. He had been seen about a quarter before eleven on the mornincr of the murder with something bulky under his coat, near the place where the footsteps were lost on the hard ground, and proceeding thence towards the town of Wednesbury. At about eleven o'clock he called at the " Pack Horse " in that place, not far from the house, where he took something to drink and immediately left, and at a little after twelve he called at another public-house, which was also near the scene of the murder, where he stayed some time smoking and drinking. In the interval between the times when the prisoner had called at these public- houses, he was seen at some distance from them, near an old whimsey ; and he was subsequently seen returning in the opposite direction towards Wednes- bury. Five days afterwards, upon further search, the same footprints were discovered on a footpath leading in a direction from the "Pack Horse" towards the whimsey, where two bricks appeared to have been placed to stand upon, close to which was found an impression of a right foot corresponding with the impressions which had been before discovered ; and in the flue was concealed a handkerchief in which were tied up a pair of trousers and waistcoat, part of the property stolen from the house. The prisoner must have availed himself of the interval between the times when he was seen at the two public-houses, to secrete the stolen garments in the whimsey, and thus to divest himself of the 176 EXTRINSIC INCULPATORY INDICATIONS. bulky articles \vhich had been observed und('r his coat on his arrival at the " Pack Horse." The jury, after deliberating several hours, returned a verdict of guihy, and he was executed pursuant to his sentence, having- previously made a confession of his guilt (/-'). A young man was tried at Taunton for the murder of a little girl. It was a murder of the kind known some years ago as of the " Jack the Ripper" order. The child was last seen going in the direction of her home. Her way was througli a field, across which lay a footpath. On the further side of the field was a ditch, the soil being of clay. In this ditch her body was found, cruelly mutilated. About the time when the murder must have been committed, a man was seen in the ditch. From a variety of circumstances, suspicion fell upon the prisoner. Casts were taken of the footprints in the ditch and close to the child's body. They were not of the best ; but the prisoner's boots had a few individual peculiarities, consisting chiefly of the absence of nails in one place or another from several of the rows on each boot. Careful measurements were made with a pair of compasses, and there was such a mass of correspondences between existing nails and absent nails in boots and footmarks, and such exact equality in the distances between nails which had been worn so as to present peculiarities and the places where nails were absent from both boots and casts, that it was impossible to believe that the correspondences {k) Reg. V. Beards, coram Atcherley, Serjt. ; and see other cases of this kind, Rex v. Ricliardson, see pp. 3S4-389, ijtjra; Rex v. Spiggoit and others, 4 Cel. Tr. 446. IDENTIFICATION OF PERSON. I77 were accidental. The prisoner was convicted and executed, having confessed his guilt (/). In an American case, a prisoner charged with arson had turned his horse's shoes round after arriving at the house, so as to create the appearance of two persons having proceeded to and from it ; but the artifice was the means of deteciion, since the removal of the shoes was indicated by the recent marks of nails on the horse's foot, and afforded one of the most emphatic of the indications by which the prisoner's guilt was established. To o-uard against error, it is manifest that the recency of the discovery and comparison of the impressions, relatively to the time of the occurrence of the corpus delicti, and before other persons may have resorted to the spot, is of the highest import- ance. So, the accuracy of the comparison is obviously all-important, and therefore as a further means of guarding against mistake, it must be shown that the shoes were compared with the footmarks before they were put on them {vi) ; and where the comparison had not been previously made, Mr. Justice Parke desired the jury to reject the whole inquiry relating to the identification by shoe-marks (;/). Nor must it be overlooked, that, even where the (/) Reg. V. Reyland, Taunton Winter Assizes, February 20th, iS8g, coram Wills, J. (;/z) Rex v. Heafon, cited in Rex v. Shaw, i Lewin, C. C. 116. {n) Rex V. Shaiu, ibid. The boots or shoes never ought to be put into the footprints at all. The impressions for comparison should be made by the side and at a sufficient distance from those in question. Where the character of the soil and the interval of time permit such a C.E. N 178 EXTRINSIC INCULPATORY INDICATIONS. identity of footmarks has been established beyond all doubt, they may have Ijeen fabricated with the intention of diverting suspicion from the real offender, and fixing it upon an innocent party {(?) ; and that in other respects this kind of evidence may lead to erroneous interpretation and inference (/). The identification of human remains is attended with peculiar difficulties consequent upon the changes produced by death, which will be considered in a subsequent part of this essay. Section 2, identification of articles of property. The identification of articles of property, like that of the human person, is capable of being established, not only by direct evidence, but by means of numberless circumstances which it is not possible to enumerate. Most of the cases of identification which have been mentioned in the preceding Section, are in fact cases of identification of articles of property, applied inferentially to the establishment of personal identity, and sufficiently illustrate the difficulties which attend investigations of this kind. The following cases, as well as others which have been thing, the most satisfactory mode of proof is dig out and preserve the original footprints ; where that cannot be done, casts in plaster of Paris should be taken. Where neither of these methods are adopted and the identification is sought to be established merely by the police evidence, juries are apt to pay very little attention to it. ((?) See the remarkable case of Franqois Mayenc, Gabriel, 403. {p) Rex V. Thornton, see pp. 244 — 249, infra \ Rex v. Isaac Looker, tee pp. 242 — 244, infra. IDENTIFICATION OF ARTICLES OF PROPERTY. IJQ already mentioned, illustrate the liability to error and misconception, of even well-intentioned witnesses who speak to facts of this kind. At the Spring Assizes, at Bury St. Edmunds, 1830, a respectable farmer, occupying twelve hundred acres of land, was tried for a burglary and stealing a variety of articles. Amongst the articles alleged to have been stolen were a pair of sheets and a cask, which were found in the possession of the prisoner, and were positively sworn to by the witnesses for the prosecution to be those which had been stolen. The sheets were identified by a particular stain, and the cask by the mark " P. C. 84." enclosed in a circle at one end of it. On the other hand, a number of witnesses swore to the sheets being the prisoner's, by the same mark by which they had been identified by the witnesses on the other side as being the prosecutor's. With respect to the cask, it was proved by numerous witnesses, whose respectability left no doubt of the truth of their testimony, that the prisoner was in the habit of using cranberries in his establishment, and that they came in casks, of which the cask in question was one. In addition to this, it was proved that the prisoner purchased his cranberries from a tradesman in Norwich, whose casks were all marked " P. C. 84." enclosed in a circle, precisely as the prisoner's were, the letters P. C. being the initials of his name, and that the cask in question was one of them. In summing up, the learned judge remarked, that this was one of the most extra- ordinary cases ever tried, and that it certainly N 2 l80 EXTRINSIC INCULPATORY INDICATIONS. appeared tliat the witnesses for the prosecution were mistaken. The prisoner was acquitted [q). A man was tried in Scotland for housebreakinor and theft. The i^irl whose chest liad Ixjen broken open, and whose clothes had been carried off, swore to the only article found in the prisoner's possession and produced, namely, a white gown, as being her property. She had previously described the colour, quality and fashion of the gown, and they all seemed to correspond with the article produced. The housebreaking being clearly proved, and the goods, as it was thought, clearly traced, the case was about to be closed by the prosecutor, when it occurred to one of the jury to cause the girl to put on the gown. To the surprise of every one present, it turned out that the gown wfiich the girl had sworn to as belonging to her — which corresponded with her description, and which she said she had worn only a short time before — would not fit her person. She then examined it more minutely, and at length said it was not her gown, though almost in every respect resembling it. The prisoner was, of course, acquitted ; and it turned out the gown produced belonged to another woman, whose house had been broken into about the same period, by the same person, but of which no evidence had at that time been produced (7'). On the trial of a young woman for child-murder, it appeared that the body of a newly-born female [q) See Ann. Reg., 1830 (Chr.), p. 5c. (r) Rex V. Webster, Burnett on the Criminal Law of Scotland, p. 558 ; 19 St. Tr. coL 494 (note). IDENTIFICATION OF ARTICLES OF PROPERTY. l8l cliikl was found in a pond about a hundred yards from her master's house, dressed in a shirt and cap, and a female witness deposed that the stay or tie which was pinned to the cap, and made of spotted Hnen, was made of the same stuff as a cap found in the prisoner's box ; but a mercer declared that the two pieces were not only unlike in pattern, but different in quality {s). A youth was convicted of stealing a pocket-book containing- hve one-pound notes, under very extra- ordinary circumstances. The prosecutrix leit home to oro to market in a nei^hbourino" town, and havin^j: stooped down to look at some vegetables exposed to sale, she telt a hand resting upon her shoulder, which on rising up she found to be the prisoner's. Having afterwards purchased some articles at a grocer's shop, on searching for her pocket-book in order to pay for them, she found it gone. Her suspicion fell upon the prisoner, who was appre- hended, and upon his person was found a black pocket-book, which she identified by a particular mark, as that which she had lost, but it contained no money. Several witnesses deposed that the prisoner had long possessed the identical pocket- book, speaking also to particular marks by which they were enabled to identify it ; but some dis- crepancies in their evidence having led to the suspicion that the defence was a fabricated one, the jury returned a verdict of guilty, and the prisoner was sentenced to be transported. During the (s) Rex V. Bate, Warwick Autumn Assizes, 1809, bcloie Le Blanc, J. l82 EXTRINSIC INCULPATORY INDICATIONS. continuance of the Assizes, two men who were mowing a field of oats through which the path la)' by which the prosecutrix had gone to market, found in the oats close to the path a black pocket-book containing five one-pound notes. The men took the notes and pocket-book to the prosecutrix, who immediately recognized them ; and the committing magistrate despatched a messenger with the articles found, and her affidavit of identity to the judge at the assize town, who directed the prisoner to be placed at the bar, publicly stated the circumstances so singularly brought to light, and directed his immediate discharge. The prosecutrix must have dropped her pocket-book, or drawn it from her pocket with her handkerchief, and had clearly been mistaken as to the identity of the pocket-book produced upon the trial (/). It is not, however, necessary that the identity of stolen property should be invariably established by positive evidence. In many such cases identification is impracticable ; and yet the circumstances may render it impossible to doubt the identity of the property, or to account for the possession of it by the party accused upon any reasonable hypothesis consistent with his innocence ; as in the case of labourers employed in docks, warehouses, or other such establishments, found in possession of tea, sugar, tobacco, pepper, or other like articles, con- cealed about the person, in which cases the similarity or general resemblance of the article stolen is (/) Rex V. Gould, Stafford Summer Assizes, 1820, coram Garrow, B. IDENTIFICATION OF ARTICLES OF PROPERTY. 183 sufficient (ii). Two men were convicted of stealinj^ a quantity of soap from a soap manufactory near Glasgow, which was broken into on a Saturday night by boring a hole in the wall, and i 20 lbs. of yellow soap abstracted. On the same night, at eleven o'clock, the prisoners were met by a watch- man near the centre of the city, one of them having 40 lbs. of yellow soap on his baciv, and the other with his clothes greased all over with the same substance. The prisoners, on seeing the watchman, attempted to escape, but were seized. The owner declared that the soap was exactly of the same kind, size, and shape, with that abstracted from his manufactory ; but as it had no private mark, he could not identify it more distinctly. One of the prisoners had formerly been a servant about the premises, and both of them alleged that they got the soap in a public-house from a man whom they did not know (x). A servant man was seen to come from a part of his master's premises where he had no right to go, and where a large quantity of pepper was stored in bulk, and on being stopped, a quantity of pepper of the same kind was found on his person : it was held by the Court for the Consideration of Crown Cases Reserved that though the pepper could not be positively identified, he had been properly convicted of larceny (j). (u) 2 East, P. C. 657 ; 2 Russell on Crimes, 6th ed., p. 294 ; Hex v- W/nye, R. & R. 508 ; Re^. v. Dredge, i Cox, C. C. 235. (.r) Rexv.M''Kechnie and To/inie, Glasgow Spring Circuit, 1828, Alison's Principles of the Criminal Law of Scotland, vol. i., p. 322. Cf. p. 80, supra. {y) Rex V. Burton, 23 L. J. M. C. 52 ; 6 Cox, C. C. 293 ; and see Reg. V. Hooper, i F. & F. 85. 184 extrinsic inculpatory indications. Section 3. proof of handwriting Strictly speaking, the only evidence of handwriting which is entitled to be called direct, is the evidence of a witness who proves that he himself wrote or signed the document in question, or that of a witness whoproves that he saw the document written orsigned. All other evidence of handwriting must rest in greater or less degree upon inferences drawn from the appearance of the writing in question or other circumstances. Where such direct testimony is not available, the best and usual mode of proving handwriting is, by the direct testimony of some witness who has either seen the party write, or acquired a knowledge of his handwriting from having corre- sponded with him, and had transactions in business with him on the faith that letters purporting to have been written or signed by him were genuine. In either case, the witness is supposed to have received into his mind an exemplar of the general character of the handwriting of the party, and he is called on to speak to the writing in question by reference to the standard so formed in his mind (z). In cases where evidence of the kinds above (z) Per Coleridge, J., in Doe d. Mudd v. SuJcermore, 5 A. &; E., at p. 70s, and 2 N. & P. 16. PROOF OF HANDWRITING. 185 descri1:)ed was lacking or required corroboration, the question arose whether it was admissible for the Court or jury to judge of the genuineness of a Avriting in dispute from its likeness or unlikeness to othf^r writings, the genuineness of which was capable of proof in other ways, and whether witnesses might be called for the purpose of proving the effect of such comparison. The following may be taken as a fair statement of juridical opinion and practice upon this subject prior to the legislative change introduced in the year 1S54. Evidence of similitude of handwriting by the comparison of controverted writing with the admitted or proved writing of the party, made by a witness who had never seen the party write, nor had any knowledge of his handwriting, and who arrived at the inference that it was his handwriting because it was like some other which was his {a), was a mode of proof much lauded by writers on the civil law, and was commonly admitted in those countries whose jurisprudence is founded on that system ; the comparison being made by professional experts appointed by the Court or agreed upon by the parties, under many restrictions for securing the genuineness of the writings which are to form the standard of comparison. Comparison of hand- writing appears also to have been a recognized mode of proof in some of the American States, (a) Bentham's Rationale of Judicial Evidence, book vii., c. 3 ; Rex V. De la Mode, 21 St. Tr. col. 810. l86 EXTRINSIC INCULPATORY INDICATIONS. v/hose judicial systems are generally founded on our own {/?). Such evidence was in general inadmissible in this country, though the leaning of text-writers of authority appears to have been rather in favour of the principle of its admissibility ; the only admitted exceptions being, where the writing acknowledged to be genuine was already in evidence in the cause, or the disputed writing was an ancient writing (c). In these excepted cases, the evidence was admitted, it was said, of necessity — in the former case because it was not possible to prevent the jury from making such comparison, and therefore it was best, as was remarked by Lord Denman (d), for the Court to enter with the jury into that inquiry, and do the best it could under circumstances which could not be helped ; — in the latter, because from the lapse of time no living person could have any knowledge of the handwriting from * his own observation (,?), and because in ancient documents it often became a pure question of skill, the character of the hand- writing varying with the age, and the discrimination of it being materially assisted by antiquarian researches (/). (d) See in Bemis's Report of the Trial of Professor Webster, some curious evidence of this kind ; see p. 109, supra. (<:) Allport V. Meek, 4 C. & P. 267 ; Brojnage v. Rice, 7 ibid. 548 ; Waddingtofi v. Coiisins, ibid. 595 ; Griffith v. Williams, i C. & J. 47 ; Doe d. Perry v. Neivton, i N. & P. 1 ; and 5 A. & E. 514 ; Solita v. Ya-'-roiv, i M. & R. 133 ; Griffits v. Ivery, 11 A. & E. 322 ; The Fits- waiter Peerage, 10 C. &; F. 193 ; Doe d. Jenkins v. Davies, 10 Q. B. 314 ; 16 L. J. Q. B. 218 ; and see Reg. v, Taylor, 6 Cox, C. C. 58. (d) \tv Doe d. Perry v. Newton, i N. & P. i. {e) Per Patteson, J., in Doe d. Muddw Sicckermore, 5 A. & E. 703, at p. 736. {/) Per Coleridge, J., ibid., at p. 718. PROOF OF HANDWRITING. 187 The evidence of persons accustomed to the critical examination of handwriting, as engravers and inspectors of franks, who, without any previous knowledge of a person's handwriting, have professed to be able to determine by comparison of the disputed with the genuine writing, whether a signature be genuine or not, and also from the general character and appearance of writing, whether it is written in a natural or feigned hand, was formerly considered another exception to the rule (o-) ; but it came to be thought of so little weight, and attempts to introduce it were so much dis- countenanced, that, in the lanofuaofe of Lord Denman (//), this chapter might be considered as expunged from the book of evidence. It was remarked of evidence of this nature, that besides being subject to the same defects as the opinions of persons speaking from previous familiar knowledge, it arose from a forced acquaintance with the hand- writing of a few, often selected, specimens, while the examination was made solely with a view to giving evidence in favour of the party to whom the witness looks for remuneration (z) ; so that, in the words of an eminent Scotch judge, " in almost all countries, the evidence of persons of skill on this subject is almost totally abandoned " (k). i/f) Goodtitle v. Rcvett^ 4 T. R. 497 ; Rex v. Cator, 4 Esp. 117 ; Rex v. Johnson, 29 St. Tr. 81. (Ji) Doe d. Miidd v. Sitckerniore, 5 A. & E., at p. 751 ; and see Gurney v. Langlands, 5 B. & Aid. 330 ; Constable v. Steibcl, i Hagg, 56 ; Young v. Brown, ibid. 569 ; The Fitztvalter Peerage, 10 C. & F, 193 ; The Tracy Peerage, ibid. 154. {i) Dickson's Law of Evidence in Scotland, vol. i., s. 925, p. 477, iJS) Per Lord Mackenzie, ibid., note («). l88 EXTRINSIC INXULPATORY INDICATIONS. An attempt was made in tlie year 1836, in the leading case of Doe v. Suckcrmore, to introduce expert evidence by comparison of liandvvritintys. The question in the cause was the due execution of a will. On the first day of the trial the defendant called an attesting witness, who swore that the attestation was his. On his cross-examination, two signatures to depositions respecting the same will in an Ecclesiastical Court, and several other signatures were shown to him (none of them being in evidence for any other purpose of the cause), and he stated that he believed them to be his. On the following day the plaintiff tendered a witness to prove the attestation not to be genuine. The witness was a bank-inspector, who had no knowledge of the handwriting of the supposed attesting witness, except from having previous to the trial, and again between the two days, examined the signatures adniitted by the attesting witness, which admission he had heard miade in Court. Mr. Justice Vaughan rejected the evidence ; and upon a motion for a new trial on the ground of its improper rejection, the judges of the Court of Queen's Bench were equally divided in opinion (/). Thus stood the law down to 1854, when the Common Law Procedure Act of that year {rn) enacted that comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall in civil cases be permitted to (/) 5 A. & E. 703; and see Hughes v. Rogers, 8 iM. & W. 133; Young V. Hor7ter, 2 M. & R. 536 ; i C. & K. 51. (tn) 17 & 18 Vict. c. 125, s. 27. PROOF OF HANDWRITING. l8g be made by witnesses, and such writing's, and the evidence of witnesses respecting the same, may be submitted to the Court and jury as evidence of the genuineness or otherwise of the writing in dispute. A few years later a section in precisely the same terms was incorporated into the Criminal Evidence Act, 1865 (w), so that the anomaly of a difference between the rules governing the admissibility of such evidence in civil and criminal cases no longer exists. Evidence as to handwriting is subject to many sources of fallacy and error, among which may be enumerated tuition by the same preceptor, employ- ment with other persons in the same place of busi- ness, as well as designed imitation or disguise, all of which are frequently causes of great similarity in writing-. Men in certain businesses or professions sometimes adopt peculiarities of character, though less frequently than formerly ; and there are charac- teristic peculiarities indicative of age, infirmity, and sex (0). Handwriting is sometimes most successfully imitated. On a trial for forgery of bank-notes, a banker's clerk whose name was on one of the notes swore distinctly that it was his handwriting, although as a matter of fact it was forged, while h^ spoke hesi- tatingly with respect to his genuine subscription {/>). A solicitor named Shaw was tried at Derby, in 1S61 (n) 28 & 29 Vict. c. 18, s. 8. (o) See Rex v. Johnson, 29 St. Tr., at col. 475. (^) Rex V. Carsewell^ Burnett's Criminal Law of Scotland, 502. igO EXTRINSIC INCULPATORY INDICATIONS. or 186.?, on a number of indictments for forg"ery. One of them related to a deed which purported to be executed by a chent of his named Abel. Abel had executed a g^enuine mortgage, and the solicitor had forged another in his name. The client, Abel, swore to the forgery as his genuine signature, and swore that the s^enuine signature was not his. He (jave this evidence before the magistrate and the grand jury. But he had made a mistake, and in an action, tried likewise at Derby, on the forged deed, it was conclusively established by the evidence of the con- vict, corroborated by a variety of circumstances, that he hsd sworn to the wrong deed as his own [q). Lord Eldon mentioned a very remarkable instance of the uncertainty of this kind of evidence. A deed was produced at a trial on which much doubt was thrown as a discreditable transaction. The solicitor was a very respectable man, and was confident in the character of his attesting witnesses. One of them purported to be Lord Eldon himself, and the solicitor, who had referred to his signature to plead- ings, had no doubt of its authenticity, yet Lord Eldon declared that he had never attested a deed in his life (r). Sometimes, on the contrary, a very small matter is conclusive as to the genuineness or otherwise of iq) Pai?iter v. Af>el^ coram Erie, C. J., Derby Summer Assizes, 1862, 2 H. & C. 113 ; 33 L. J. Exch. 60. In the latter report it is erroneously stated that the convict was not called. The Editor perfectly well remembers his appearance in the witness-box, and in convict clothes, and the contrast he presented to the over-dressed man who had appeared with something of a swagger in the dock a few months before. (r) Eaglcion v. Kingston^ 8 Ves,, at p. 476. PROOF OF HANDWRITING. IQI documents of disputed oriL,nn. In Cressiucllv. Jack- sofi {s), certain codicils, an interlineation in a will and part of an epitome of the will and the first codicil were successfully shown to be forgeries. It turned out that the method of crossing the letter /in the word "to "was an absolute key to the handwritings of the testator and the forger — and similarly, in Hozve v. Ashton (/), the method of making the upper part of the figure 7 was conclusively shown to be a crucial test as to whether the incriminated document was genuine or not In a case in Doctors' Commons the learned judge repudiated the common objection of painting or touching, as a reason for inferring fraud, saying that there could scarcely be a less certain criterion, and peremptorily declined the use of a glass of high powers, said to have been used by the professional witnesses, observing, in substance, that glasses of high power, however fitly applied to the inspection of natural subjects, rather tend to distort and mis- represent than to place subjects of the kind in question in their true light ; especially when used (their ordi- nary application in the hands of prejudiced persons) to confirm some theory or preconceived opinion (?/). But it is the daily practice of Courts of Common Law to admit the artificial aid of glasses and lamps ; and on an indictment for forgery, the question being whether a paper had originally contained certain pencil marks which were alleged to have been rubbed out, and ink-writings written in their stead, the opinion (i') See p. 402, injra. (/) See p. 413, infm, (u) Robson V. Rocke, 2 Addams, 53, at pp. 85, 88 (a), 89. ig2 EXTRINSIC INCULPATORY INDICATIONS. of an cni;ravcr. who liad examined the document wilh a mirror, was licld t<3 be receivable (.r). The distrust of maonif)inL,r glasses above alluded to was perhaps natural a century ago, seeing what they were. A glass of high power and with a narrow area of undistorted vision may very well still convey an erroneous impression to the observer. But with such excellent instruments as are readily at command at the present day the old-fashioned distrust has disappeared, and such aids to the eyesight are of the utmost value. Enlarged photographs are often of great use, not only to show the patching and painting which sometimes accompanies a forgery, but also to indicate diversities of ink or half-erased pencil marks : such variations depending upon differences in the chemical composition of the sub- stances remaining upon the paper which affect the actinic effect of the rays reilected from them. Effective use was made of enlarged photographs in investigating the Piggott forgeries, and an elaborate series of them prepared for use before the Parnell Commission was once shown to the Editor. They were conclusive, but were not used in Court as the case for the forgeries broke down upon the cross- examination of Piggott. The following extract from a learned judgment of Sir John NichoU embodies many instructive observations upon this kind of evidence : '* This Court has often had occasion to observe, that evidence to handwriting is at best, in its own nature, {x) Reg. V. Williams, 8 C. & P. 434. PROOF OF HANDWRITING. 193 very inconclusive; affirmative, from the exactness with which handwriting may be imitated ; and negative, from the dissimilarity which is often discoverable in the handwriting of the same person under different circumstances. Without knowing very precisely the state and condition of the writer at the time, and exercising a very discriminating judgment upon these, persons deposing, especially, to a mere sionature not being that of such or such a person from its dissimilarity — howsoever ascertained or supposed to be — to his usual handwriting, are so likely to err, that negative evidence to a mere sub- scription, or signature, can seldom, if ever, under ordinary circumstances, avail in proof against the final authenticity of the instrument to which that subscription or signature is attached. But such evidence is peculiarly fallacious where the dis- similarity relied upon is not that of general character, but merely of particular letters ; for the slightest peculiarities of circumstance or position — as, for instance, the writer sitting up or reclining, or the paper being placed upon a harder or softer substance, or on a plane more or less inclined — nay, the materials, as pen, ink, etc., being different at different times — are amply sufficient to account tor the same letters being made variously at the different times by the same individual. Independently however of anything of this sort, few individuals, it is apprehended, write so uniformly that dissimilar formations of particular letters are grounds for concluding them not to have been made by the same person "(j'). {j) Robson V. Rocke, 2 Addams, at p. 79. C.E. O 194 EXTRINSIC INCULPATORY INDICATIONS. The difficulty of provingr handwriting is greatly increased where it is studiously disguised ; but such is the power of habit, that though persons may succeed to a certain extent in disguising their writ- ino-, they commonly fall into their natural manner and characteristic peculiarities of writing (z) ; such peculiarities being most commonly manifested in the formation of particular letters, or in the mode of spelling particular words. A tailor, of the name of Alexander, having learned that a person of the same name had died, leaving considerable property without any apparent heirs existing, obtained access to a garret in the family mansion ; and it was said found there a collection of old letters about the family. These he carried off, and with their aid fabricated a mass of similar pro- ductions, which, it was said, clearly proved his connection with the family of the deceased, and the Lord Ordinary decided the cause in his favour; the case however was carried to the Inner House. When it came into Court, certain circumstances led Lord Meadowbank, then a young man at the bar, to doubt the authenticity of the documents. One circumstance was, that there were a number of words in the letters, purporting to be from different (z) Per Macdonald, L. C. B., in Rex v. Binghain, Horsham Spring Assizes, 1811, Shorthand Report, 106; Howe v. Asliton,^. 413, infra; Cresswell \. Jackson, p. 402, infra, and see p. 191, supra. The latter case presented a curious instance of characteristic spelling. The person alleged to be the writer of the incriminated documents (with only one discovered exception) invariably spelled "daughter" " donghier^'' a phonetic way of spelling the word after the pronuncia- tion common in the district. The testator never made this mistake. VERIFICATION OF DATES AND TIME. I95 individuals, spelt, or rather misspelt, in the same way, and some of them so peculiar, that on examin- ing them minutely, there was no doubt that they were all written by the same hand. The case attracted the attention of the Inner House. The party was brought to the clerk's table, and was examined in the presence of the Court. He was desired to write to the dictation of the Lord Justice Clerk, and he misspelt all the words that were misspelt in the letters in precisely the same way ; and this and other circumstances proved that he had fabricated all of them himself. He then confessed the truth of his having written the letters on old paper, which he had found in the garret ; and this result was arrived at in the teeth of the testimony of half-a-dozen engravers, all of whom said that they thought the letters were written by different hands {a). It is even more difficult to depose with confi- dence to the identity of a disguised writing, if the disguise is applied to printed characters, and Mr. Baron Rolfe spoke of such evidence as of no value (<^). Section 4. verification of dates and time. Amongst the numerous physical and mechanical circumstances which occasionally lead to the detec- tion of forgery and fraud, a discrepancy between the (a) Related by Lord Meadowbank himself, in the course of his charge to the jury, in -R^g- v. Humphreys^ see pp. 198-201, tJifra ; Swinton's Report at p. 350 ; and see Shorthand Report of the case of Smith V. Earl Ferrers, 1846. {d) Reg. V. Rush, Norwich Spring Assizes, 1849 ; Professor IVebstcr's case, Bemis's Report, see p. 109, supra. O 2 ICj6 EXTRINSIC INCULPATORY INDICATIONS. date of a writinL^ and the anno Domini water-mark in the tahric of tlie paper is one of the most strikiiiLi;- ; hut inasmuch as prospective issues of paper, bearing the water-mark of a succeeding year, are occasion- ally matle, tliis circumstance is not always a safe ground of presum[)tion (^) ; and it is not uncommon among mauLifacturers both to post-date and to ante- date their paper-moulds. A witness examined in 1834 stated that he was then making moulds with the date of 1828, under a special order [d). In an old case a criminal design was detected by the cir- cumstance that a letter, purporting to come from Venice, was written upon paper made in England (^). In one case, in which an action was brought upon a forged cheque alleged to have been given to the plaintiff by a deceased person, the plaintiff, in order to account for the possession of a sum of ^200 which he said he had lent to the deceased man, stated that he had borrowed that sum from his mother-in-law, to whom he had given a promissory note, which he produced, having, as he said, obtained it from her for the purposes of the trial. There was a hole through the year mark on the stamp, which he said was caused by his mother-in-law having put it on a file. The note was dated in 1889. The date- mark should have been " 89." Just enough remained of the first fi^^ure to sufiffrest to the iudgre that the {c) A Commissioner of the Insolvent Debtors' Court sitting at Wake- field in 1836. discovered that the paper he was then using, which had been issued by the Government stationer, bore the water-mark of 1837. {d) Rodger v. Kay, 12 Cases in Court of Session, 317 ; Miller v. Frasei\ 4 ib. 551 ; 4 Murray's Cases in Jury Court, at p. 118. ie) Sir Francis Moore's Rep. 817. VERIFICATION OF DATES AND TIME. IQJ curve dill not look like the sharp curve of half of an " 8," and, upon very careful manipulation of the back of the note with a fine instrument, very nearly the whole of the year-mark " 90 " was replaced and made distinctly visible. Evidence from the Stamp Office showed that stamps were never issued post- dated (/). The critical examination of the niternal contents of written instruments, perhaps of all others, affords the most satisfactory means of disproving their genuineness and authenticity, especially if they pro- fess to be the productions of an anterior age. It is scarcely possible that a forger, however artful in the execution of his design, should be able to frame a spurious composition without betraying its fraudulent origin by peculiarities of writing or orthography characteristic of a different age or period, or by the employment of words of later introduction, or by the use of them in a sense or meaning which they did not then bear, or by some statement or allusion not in harmony with the known character, opinions, and feelings of the pretended writer, or with events or circumstances which must have been known to him, or by a reference to facts, or modes of thought characteristic of a later or a different age from that to which the writing relates. A writer, eminent alike for his critical sagacity and for his imaginative genius, declared that he had met in his researches with only one poem which, if it had been produced as ancient, could not have been detected on internal (/) Howe V. Btircliardt and iDwilicr^ Middlesex Hilary Sittings, 1891, coram Wills, J. ; see pp. 413-414, i7ifra. ig8 EXTRINSIC INCULPATORY INDICATIONS. evidence (o-). Judicial history presents innunK^rnble examples in illustration of the soundness of these principles of judi^Tnent, of which the following are not the least interesting. A deed was offered in evidence, bearing date the 13th of November in the second and third years of the reign of Philip and Mary, in which they were called " king- and qtteen of Spain and both Sicilies, and dukes of Burgundy, Milan, and Brabant," whereas at that time they were formally styled '"'- princes of Spain and Sicily," and Burgundy was never put before Milan, and they did not assume the title of king and queen of Spain and the two Sicilies until Trinity Term following {Ji), A most curious and instructive case of this kind was that of Alexander Humphreys, before the High Court of Justiciary at Edinburgh, April, 1839, for forging and uttering several documents in support of a claim advanced by him to the earldom of Stirling and extensive estates. One of those documents purported to be an excerpt from a charter of Novodamus of King Charles I., bearing date the 7th of December, 1639, in favour of William the first Earl of Stirling, and making the honours and estates of that nobleman, which under previous grants were inheritable only by heirs viale^ descendible in default of heirs male to his eldest heirs female, without division, of the last of such heirs male, and to the heirs male of the body (;?■) 2 Lockhart's Life of Scott, c. ix. iji) Mossom V. Ivy^ lo St. Tr. 555, at col. 616 ; and see Co. Litt. ^b, VERIFICATION OF DATES AND TIME. IQQ of such heirs female respectively. This excerpt purported in the testatum clause to be witnessed by Archbishop Spottiswood "our chancellor," whereas he died on the 26th of November, 1639, and it was proved by the register of the Privy Council that he resigned the office of Chancellor, and that the Great Seal was delivered to the custody of James, Mar- quess of Hamilton, on the I3tli of November, 1638, more than a year before the date of the pretended charter, and that there was an interregnum in the office of Chancellor until the appointment of Lord Loudon on the 30th of September, 1641. A genuine charter, dated four days after the pre- tended charter, was witnessed by James, Marquess of Hamilton. The circumstance was significant, that in the catalogue of the Scottish chancellors, appended to Spottiswood's History and other works, no mention is made of the interval between the resignation of the Archbishop of St. Andrew's and the appointment of the Earl of Loudon. In the margin of the excerpt was a reference to the register of the Great Seal Book 57, in the following form, "Reg. Mag. Sig. lib. 57;" but it was proved that this mode of marking and reference did not commence until 1806, when the registers were re- bound, in order that they should have one title ; and that previously to that time the title of those documents was, " Charters, book i., book ii,," and so on. In the supposed excerpt the son of the first earl was styled " nostra consanguineo" a mode of address never adopted in old charters in regard to a commoner ; and there w^ere other internal inconcrrui- ties. This document consisted of several leaves 200 EXTRINSIC INCULPATORY INDICATIONS. Stitched toq-cther, wliich were of a brown colour — as ^vel! under the stitching as where open ; whereas if the stitcliing had been old, the part of the paper not exposed to the atmosphere would have been whiter than the rest. Around the margin of this excerpt were drawn red lines ; but it was proved by official persons familiar with the extracts of the period, that such lines were not introduced into the Chancery Office till about 1780. A series of anachronisms conclusively disproved the authenticity of several other documents adduced by the prisoner in support of his claim. One of those documents was a copper-plate map of Canada by Guillaume de I'lsle, "Premier G^o- graphe du Roi, avec privilege pour vingt ans," bearing the date of 1703; on the back of which, amongst other supposed attestations, were a note purporting to be in the handwriting of Flechier, Bishop of Nismes, dated the 3rd of June, 1707, and another note purporting to be in the handwriting of Fenelon, Archbishop of Cambray, of the date of the 1 6th of October, 1707. It was proved that De I'Isle was not appointed geographer to the king until the 24th of August, 1718. In all of De I'lsle's editions of his map the original date of i 703 was preserved as the commencement of his cop) right, but on any change of residence or of designation, he made a corresponding change in the original copper-plate from which all successive issues of the map were engraved, and it was proved by a scientific witness that the title of De I'Isle had been actually altered on the copper-plate of the map since 171 8. It was also proved that Flechier died in 171 1 (the letters- patent for the installation of his successor in the VERIFICATION OF DATES AND TIME. 201 bishopric of Nismes being produced, bearing date the 26th of February in that year), and that Fenelon died on the /th of January, 171 5. Of course a map issued prior to 1718 could not refer to his appointment of geographer to the king, and any attestation of the date of I 707, or by a person who died before 1 7 1 8, to a map containing a recognition of that appointment must of necessity be spurious. The forger of the map must have been ignorant of the fact that De risle was not appointed geographer to the king until 1 718, and misled by the date of 1703 upon his maps ; so difficult is It to preserve consistency in an attempt to impose by means of forgery. The very ink with which some of the pretended attestations were made was not the usual ink of the period, but a modern composition made to imitate ink turned old. There were other strong grounds for impugning the genuineness of these various documents, which the jury unanimously found to be forged (/). It was observed by Lord Chief Baron Macdonald, that there is nothing of which we are so little in the habit as measuring with any degree of correct- ness small portions of time ; and that if anyone were to examine with a watch which marks the seconds, how much longer a space of time a few seconds or a few minutes really are than people in general conceive them to be, they would be surprised ; but that in general, when we speak of a minute, or an instant, (i) See Report of the Trial of the claimant of the Stirling Peerage, by Archibald Swinton ; another report by William Turnbull ; Remarks on the Trial, by an English Lawyer ; i Townsend's Modern State Trials, 403 ; and Dickson's Law of Evidence in Scotland, vol. L § 2S9, p. 172. 202 EXTRINSIC INCULPATORY INDICATIONS. we can hardly be understood to mean more than tliat it was a very short space of time {k). Nevertheless it is sometimes of the highest importance accurately to fix the exact time of the occurrence of an event, and a difference of even a few minutes may be of vital moment. This frequently happens in cases where the defence is that of an a//di. On a charge of murder, where the defence was of that nature, and it was essential to fix the precise times at which the prisoner had been seen by the several witnesses soon after the fatal event which was the subject of investigation, the object was satisfactorily effected by a comparison made by an intelligent witness on the same day, of the various timepieces referred to by the several witnesses, with a public clock ; thus affording the means of reducing the times as spoken to by them to a common standard (/). Post-office marks are often of great importance in fixing disputed dates; but the defective manner in which they are impressed frequently renders them useless, and this has been from time to time the subject of judicial animadversion (/;/). Scientific testimony grounded on the state of wounds and injuries to the human body, or on its condition of decay, is frequently employed indirectly in the solution of questions of time ; but cases of this nature belong to the department of medical jurisprudence. (/&) J^ex V. Fa/c/i, Gurney's Report, 171 ; see pp. 390-395, tn/ra. (/) J^ex V, Tliornton, see pp. 244-249, infra. {in) By Lord Campbell, L. C. J., mReg. v. Palmer, see pp. 344-351, iiifra ; and by the Lord Justice Clerk in Reg. \. JMadc.eine S/n/ih, see pp. 300-310, infra. AMERICAN NOTES. [Note to Chapter IV.] Ideritification of Person. •' [Facts] which establish the identity of any thing or person whose identity is in issue or is or is deemed to be relevant to the issue, or which fix the time or place at which any such fact hap- pened, or which show that any document produced is genuine or otherwise, or which show the relation of the parties by whom any such fact was transacted, or which afforded an opportunity for its occurrence or transaction, or which are necessary to be known in order to show the relevancy of other facts, are deemed to be rele- vant in so far as they are necessary for those purposes respectively." Stephen's Dig. Evid., Art. 9. Personal Peculiarities. Where it is shown that a blow must have been given with the left hand, it may be shown that the defendant is left-handed. Com. V. Sturtivant, 117 Mass. 131. Of the methods of identification Hubback, in his Evidence of Succession, 48 Law Library, star p. 448, writes : " On the features, the most obvious and peculiar of physical characteristics. Lord Mansfield has observed, that the distinction between individuals in the human species is more discernible than in other animals. A man may survey ten thousand people before he sees two faces perfectly alike, and in an army of a hundred thousand men, every one may be known from another. Cases of persons undistinguish- able from each other by this test have, nevertheless, occasionally occurred. . . . Those who have considered this subject attach less importance to the features, which are often founti to undergo great alteration, than to peculiar marks, such as naevi, cicatrices, fractures, and natural deformities. Sometimes marks which have been effaced may be brought out by proper means. A criminal 202 b AMERICAN NOTES. who had escaped from prison, after being brantled, and appar- ently destroyed the mark by causing an eruption over the whole surface, but he was long afterwards identified by Fodcr<^, who ap- plied a cold plate of metal, which made the other parts pale, whilst the fatal letters appeared in distinct relief." Personal Appearance. Upon the issue of identity the appearance of a person two years before, and after the date in question, is competent. Com. V. Campbell, 155 Mass. 537. On questions of identity, the memory of personal appearance fifty years back is too unreliable to be considered. Sperry v. Tebbs, 20 Weekly Law Bulletin, 181. It is no identifying evidence that witnesses met a man in the street several miles away from the scene of an arson, who was about the size and height of the defendant. People v. Gotshall (Mich.), 82 N. W. 274. Evidence of identification is admissible even though it be not positive. In Com. v. Kennedy, i 70 Mass. 18, where the defendant was charged with an attempt to poison another by sticking some arsenic under the crossbar of the prosecuting witness's moustache cup, the following testimony was allowed : " An apothecary testi- fied that he sold a box of ' Rough on Rats ' the day before the cup was found, and, subject to examination, was allowed to testify that, to the best of his knowledge, belief, and recollection, he sold it to the defendant. The identity of a third person always is a matter of inference and opinion." Where criminal intercourse with a girl under a certain age is charged, it is proper to consider her appearance as indicating her age. Jones v. State, 106 Ga. 365 ; Com. v. HoUis, 170 Mass. 433 ; People v. Elco, 113 Mich. 519. A witness or a party may be required to stand up to be identi- fied. Rice V. Rice, 47 N. J. Eq. 559. Where one is asked who did a certain thing, an answer " that man" (pointing to the defendant) is proper. Com. v. Whitman, 121 Mass. 361. The State may bring in the defendant's partner in the crime and identify him as having been with the defendant. State v. Gartrell, 171 Mo. 4S9. AMERICAN NOTES. 202 C Photographs Used to Identify. Photographs and portraits are admissible to prove identity. Udderzook v. Com., 76 Pa. 340 ; Com. v. Connors, 156 Pa. 147 ; Bryant's Estate, 176 Pa. 309. Bastardy — Identification of Father, To show resemblance of a child to its putative father, the child may be exhibited to the jury for their judgment. Crow v. Jordon, 49 Ohio St. 655 ; Gaunt v. State, 50 N. J. L. 490 ; Jones v. Jones, 45 ^W. 144. Identification by Voice. Voice used as a mark of identification. State v. Shinborn, 46 N. H. 502 ; Com. V. Williams, 105 Mass. 67. Identification by voice only, when witness heard defendant speak only twice at a distance of seventy-five yards and amid the barking of dogs, is not sufficient. Patton v. State, 117 Ga. 230. "Jeremiah Dowsing deposed, that some day or two after the murder, heard some one at Noxubee turnpike, about two o'clock at night, calling out ; from the voice, thinks it was McCann ; did not see him; had known him before." McCann v. State, 13 Smedes & M. (Miss.) 471, 480. A witness who has heard the defendant talk but once may testify as to identification by the voice, but the jury may be instructed not to convict upon that evidence alone. Com. 7'. Williams, 105 Mass. 62 ; Com. v. Hayes, 138 Mass. 185. Where there is testimony as to identification by voice, the accused, not being a witness, may not repeat something to the jury in rebuttal. Com. v. Scott, 123 Mass. 222. See also John- son V. Com. 115 Pa. 369. Wounds on Defendanf s Person. Where the defendant was accused of robbing and the prosecut- ing witness testified that he had bitten his assailant on the left leg, it was allowed to be shown that the defendant had certain bruises on his left leg that might have been made by human teeth. State V. Jones, 153 Mo. 457. Where the deceased's body was found in a ditch, testimony is competent to show that the defendant was seen coming out of 202 d AMERICAN NOTES. that ditch with blood on his coat and a new scratch on liis face. Davis V. State, 126 Ala. 44. Where the defendant is charged with rape, to corroborate the identification by the prosecutrix, it may be shown that the accused had scratches on his face the day after the crime and that he had none the day before. State v. Fleming, 130 N. C. 688. A conviction would be sustained where it is shown that the defendant and the deceased had gone together to the spot where the deceased was found with her throat cut, and the defendant's finger appears to have been bitten and his coat is torn. Jones v. State, 29 Tex. App. 338. Where burglars had been frightened away by firing a shotgun at them, it was shown that one of the defendants was treated that niglit for gunshot wounds in the face, the defendants were shown to have had a horse and buggy that night, and there was one at the scene of the crime, and the owner swore he recognized the voice of another. State v. W'ines (N. J.), 46 Atl. 702. Identification by Appearatice and Condition of Clothing. Where the defendants were charged with a crime, and the State showed that it was raining at the time and place of the crime, and that clothing belonging to the defendants was found hanging in their barn wet, while other articles were dry, the defendants may prove that the barn leaked, and the State may show in rebuttal that the barn did not leak until long after the date of the crime. Kastner v. State (Neb.), 79 N. W. 713. Where the defendant, charged with murder, claimed to have been elsewhere and to have just returned home on the cars, it was shown that a man had been seen to ride away on a mule from the scene of the crime, and when the defendant was arrested at his home thirty miles from that place his trousers had hair on them like that of the mule, and the mule was found near by much exhausted. This identified him as the man seen, and with other evidence was sufficient to convict. Chapman v. State, 34 Tex. Cr. R. 27. Defendant was identified as a chicken thief by tracks in the snow, feathers on his coat, and attempting to sell the stolen prop- erty. People V. Lyons, 51 N. Y. Supp. 811. There was mud on the defendant's clothes like that in a cellar on a lot adjoining the burglarized house where stolen articles AMERICAN NOTES. 202 e were concealed, but the defendant showed that such mud was common on all the streets. People v. Cronk, 58 N. Y. Supp. 13. It may be shown that the clothing of one accused of arson smelled of kerosene and that the fire had been started with kero- sene. People V. Bishop, 134 Cal. 682. Where one is accused of setting a fire with kerosene, it may be shown that there were kerosene stains on his shirt. State v. Kingsbury, 58 Me. 238. In People v. Doneburg, 64 N. Y, Supp. 438, where a person after committing arson was traced across a ditch, in crossing which it appeared that he had fallen on his knee and elbow, evi- dence was held admissible to show that defendant's clothing was discolored at those places. Blood Stains. It may be shown that a suit of clothes belonging to the de- fendant had blood stains on it, even though it is not established that he wore that suit on the day of the murder. People v. Neufeld, 165 N. Y. 43. In Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174, the defendant was proved to have had blood stains on his shirt and face. Other cases where blood stains were used as a mark of identi- fication are Cicely v. State, 13 Smedes & M. (Miss.) 203; Davis V. State, 126 Ala. 44 ; Newman v. State, 32 Tex. Cr. R. ; Com. V. Crossmire, 156 Pa. 304. Experts are allowed to testify that they can determine whether certain blood is human or not. and further as to whether the blood in question is human. Com. v. Sturtivant, 117 Mass. 122 ; State V. Knight, 43 Me. i, 133 ; Knoll v. State, 55 Wis. 249. Evidence of a test by physicians as to a spot of supposed blood on the defendant's clothing is admissible. Beavers v. State, 58 Ind. 530. One who is not an expert may testify that certain spots seen by him are blood spots. " The testimony of the chemist who has analyzed blood and that of the observer who has merely recognized it, belong to the same legal grade of evidence ; and though the one may be entitled to much greater weight than the other with the jury, the exclusion of either would be illegal." 202/ AMERICAN NOTES. People V. Gonzales, 35 N. V. 49 ; I'coiile ?'. Greenfield, 85 N. Y. 75, 39 Am. Rep. 636; Gaines ?'. Com., 50 Pa. 330. Articles 0/ Property Used to Llcniify. It may be shown that the deceased had a number of S20 bills ; that after the homicide the defendant changed one such bill and hid others in a cellar, where they were found. State v. Gallivan, 75 Conn. 326. \\\ People V. Hamilton, 137 N. Y. 531, the defendant's identi- fication as the murderer of his wife was aided by the finding of a cuff-button near her body like an odd one in his room, the find- ing of a razor near her body, and the fact that his razor was gone, and the finiling of defendant's cane on the scene of the crime. In State v. Howard, 118 Mo. 127, part of the means used to identify the defendant as the murderer were a pocket-book and a manuscript poem found near the body and shown to have been in the possession of the defendant a short time previously. Where the State alleged that the defendant, after shooting the deceased with a 30-30 caliber rifle, fled along a certain road in a sparsely settled country, it was allowed to prove the finding of cartridges of 30-30 caliber along that road two miles from the scene of the crime and two weeks later. Horn v. State (Wyo.), 73 Pac. 705. In the case of People v. Durrant, 116 Cal. 179, 205, where the defendant was charged with the murder of a girl, it appeared that the rings which she had worn were after her death sent by mail, wrapped in a scrap of the " San Francisco Examiner," to the girl's aunt. On this scrap of paper were written two names in the defendant's handwriting, one being the name of defend- ant's classmate, the other the name of one of defendant's in- structors. These names, with admittedly genuine specimens of defendant's handwriting, were given to the jury. In King v. State (Tex.), 67 S. W, 410, it was shown that de- fendant had in his possession, when arrested while committing a subsequent burglary, a brace taken from the house in question. It may be shown that defendant stated what had become of part of the goods stolen, and that he had been seen on the road between the scene of the crime and the place where he was arrested. State v. Armstrong, 170 Mo. 406. AMERICAN NOTES. 202^ A pistol stolen from the house and found in the possession of one of the defendants is admissible as against the others also. Terry v. State (Tex.), 47 S. W. 654. In Com. V. Webster, 5 Cush. 295, to identify the defendant as the murderer of Dr. Parkman, it was proved that portions of the latter's body, his teeth, bones, etc., were found about the medical college where Professor Webster was employed. Gun-wadding. In Williams 7'. State (Ark.), 16 S- W. 816, the defendant was charged with shooting the deceased with a shotgun. He was tracked by the sheriff with bloodhounds from the place of the crime to his home, and there they found a shotgun, one barrel of which had recently been discharged. The gun-wadding found at the scene of the crime was just like that in the undischarged barrel of the gun, and the defendant's shoes exactly fitted tracks leading from the house of the deceased. The evidence identifying the defendant in a murder case as having been at the place where the shot was fired was as follows : The tracks near the place were shown to be like his ; at his house were found a gun lately fired, and shot and wadding like that used by the murderer ; and on the fence where the shot was fired was found a note on a leaf from the defendant's note-book and in his handwriting with threats against the deceased. Caldwell V. State, 28 Tex. App. 566. In Freeman v. State (Tex.), 72 S. W. looi, the wadding of a gun fired by the defendant was found to be portions of a news- paper, the rest of which was still in the defendant's house. Other Ci'imes. Evidence of another crime may be given to prove identity. Goersen v. Com., 99 Pa. 3S8. The commission of other crimes by the defendant may be proved to identify him as the doer of the act charged. People V. Taylor, 136 Cal. 19 ; Yarborough i\ State, 41 Ala. 405 ; Foster V. State, 63 N. Y. 619. To identify one who got a note by fraud, it is permissible to show that defendant got other notes from other persons by fraud. Brown v. Schock, 77 Pa. 471. 202 // AMERICAN NOTES. " The next assignment of error complains of the testimony of William ]. Horner, lie was the tenant of David Berkey, occu- ])ying his farm. In the morning after the robbery, he discovered that his barn hail been broken open during the night and a pair of horses, bridles, a saddle, and a blanket had been taken away. He also {oum\ that tiie straj)s had been removed from his fly nets and were not in the barn. The straps were soon after discovered at Berkey's house, where they had been used to bind his limbs while he was undergoing torture. The horses, with the other stolen property, were found later in the morning some eight or nine miles away in a field at the side of the road leading from Berkey's house to the home of the defendants. An examination of the ground about Berkey's house showed that during the night the horses had been tied and fed near by, and had been ridden by the robbers along the highway to the point at which they were found, where it was evident they had been abandoned, their riders completing their journey on foot. The testimony of Flor- ner was offered for the purpose of laying those facts before the jury. It was objected to because it related to another offence than that for which the defendants were indicted, and because it was not proposed to show that the defendants were seen in pos- session of the horses. But the relevancy of this testimony did not depend on whether it tended to show the commission of an- other crime, but on whether the facts were so connected with the crime under investigation as to throw any light upon its history. We think it clear that this testimony was explanatory of facts that were before the jury, and that it tended to show how, and by what route, the robbers fled from Berkey's house ; and how it was possible for the defendants to have been seen so early in the morning of the 3d of June at points where witnesses placed them, consistently with the allegation of the commonwealth that they were the perpetrators of the crimes at Berkey's house." Com. z'. Roddy, 184 Pa. 274, 2S8. Footprints. Footprints about the scene of the crime, or leading to or from it, may be shown in evidence to correspond with the feet or shoes of the accused. Young v. State, 68 Ala. 569; Jones v. AMERICAN NOTES. 202 i State, 6t, Ga. 395 ; Gilmore v. State, 99 Ala. 154; Whetston v. State, 31 Fla. 240. la Com. z'. Sturtivant, 117 Mass. 122, where the defendant's shoes were shown to fit certain tracks, the defendant denied having worn them recently. The State then showed that they had been recently washed, as tliough to remove mud on them. To identify defendant as a burglar, it may be shown that he was seen running from the place and that his shoe tracks corresponded with tracks about the place. People v. Rowell, 133 Cal. 39. Defendant was proved to have been the one who had stolen certain alfalfa seed by foot tracks about the granary, the tracks of two horses toward his house, an envelope addressed to defendant found near the tracks, and by the fact that he had later sold some alfalfa seed in sacks identified as belonging with the granary. State V. Tucker (Ore.), 61 Pac. 894. Where the accused had started barefoot toward a building with the intention of setting it on fire, evidence of the print of a bare foot several hundred yards from the burned house, but in the direction accused was going, was admitted. Ethridge v. State (Ala.), 27 So. 320. In State v. Willmeier (Iowa), 72 N. W. 275, to identify defend- ant as having set a barn on fire, tracks similar to his were testified to, although they were not discovered for nearly a week, when the snow covering them had melted. A father was identified as the murderer of his daughter by blood prints from her bed to his room and by the facts that there were no tracks whatever leading from the house and the ground was soft. A motive and other circumstances were also shown. But- ler V. State (Ark.), 63 S. W. 46. Defendant was proved to have set fire to some buildings by proof that tracks which his shoes might have made led to his house, and further proof of motive on his part. State v. Shines, 125 N. C. 730. In Newman v. State, 32 Tex. Cr. R., part of the evidence on which the defendant was convicted was as follows : The defend- ant's horse was seen hitched not far from the house of the de- ceased on the night of the murder, peculiar tracks which fitted defendant's shoes led from the house to the place where the horse had been tied, and spots that appeared to be blood were found on defendant's shirt. 202J AMERICAN NOTES. Tracks from the place of a burglary to a camp where defend- ant had been. Holiciigshead v. State (Tex.), 67 S. W. 114. Voice and peculiar track used to identify defendant. I'atton V. State, 117 Ga. 230. Peculiar tracks which defendant's shoes exactly fitted used to prove defendant guilty of arson. Weeks v. State (Ga.), 30 S. E. 252. Defendant cannot be compelled to make a footprint for com- parison. Stokes V. State (Pa.), 8 Leg. Gaz. 166. Horse and IVagon Tracks. In Cook 7'. State (Miss.), 28 So. 833, the defendants were traced from the scene of the burglary to their home by the track of a wagon having a wobbly wheel and the track of a horse with a broken hoof. They were shown to have such a wagon and such a horse. Defendant was identified as having stolen bales of cotton by proof that there were wagon tracks from the place where the bales had been hidden to the defendant's house, that his wagon was muddy, and that his team was sweaty. Cole v. State (Miss.), 4 So. 577. In Lancaster v. State, 36 Tex. Cr. R. 16, it appeared that the defendant had been seen driving in a single buggy toward the home of the deceased ; that the tracks about the scene of the crime showed that such a horse and buggy had been driven near where the corpse lay, where the occupant had got out and walked to the corpse, then to the house, and back ; that the shoe tracks of the horse were peculiar, and were like those of the horse defendant had driven. The defendant was convicted. Tracks — Evidence in Rebuttal. Tracks to a building which defendant was accused of blowing up were shown not to have been his by the fact that they were made by broad-toed shoes while his shoes had narrow toes. Lan- ders V. State (Tex.), 47 S. W. 1008. In Grant v. State (Tex.), 58 S. W. T025, the State showed that a wagon containing oats stolen from a granary and drawn by a mule and a horse could be traced from the granary to near the defend- ant's house, and that there were shoe tracks about the size of AMERICAN NOTES. 202 k defendant's shoes. The defendant proved that others beside him- self owned a wagon, a mule, and a horse, and that others wore similar shoes. Where defendant's voice was thought to be recognized as that of a burglar and where tracks near by were identified as his, he proved that he had that day loaned his shoes to another, who had since disappeared. Identification not sufficient. Porter v. State (Tex.), 50 S. \V. 380. Tracing by Bloodhound. It may be shown that a bloodhound, put on the track of a crim- inal, followed the track to the accused. Simpson z;. State, in Ala. 6 ; Pedigo v. Com., 103 Ky. 41. Evidence of the tracking of an alleged criminal by a blood- hound is admissible in a burglary case on the question of identity. State V. Hall, 4 Low. Dec. (Ohio) 147, 3 Nisi Prius, 125. And the rule is the same in a murder case. State v. Brooks, 9 West. Law Journal, 109; Williams v. State (Ark.), 16 S. W. 816. Mea?is of Idcntijicaiion in General. In the case of People v. How, 2 Wheel. Crim. Cas. (N. Y.) 4[0, the defendant was convicted of murder on the following evi- dence, although he was not seen and his voice was not recognized. He had had business trou'oles with the deceased and had threat- ened to kill him if he did not settle. He was seen shortly before, trying to conceal under his coat something that might have been a gun. He was gone from home at just the time of the murder, and returned at a time possible to the actual murderer. His horse, found blanketed and wet with sweat, he falsely said had been sick. A man who might have been the defendant was seen riding toward the home of the deceased, and shortly after the time of the crime was seen riding rapidly back. The defendant was shown to have a rifle with the barrel cut short off, so that it might be concealed under the coat. The rifle showed traces of having been fired lately, it had horsehair on it, and the priming was damp. The rifle carried a ball like that found in a beam, where it had lodged after passing through the deceased. The defendant later confessed his guilt. In State ik Orr, 64 Mo. 339, the defendant was shown to be the murderer of the deceased by the following evidence : He was 202 / AMERICAN NOTES. shown to have loft home on the day of tlic crime chessetl in a bhie army overcoat and riding a dark horse with a partner in the enter- prise ricHng a white horse. One of them had a square gin bottle. They were seen on the road not far from the home of the deceased. Near by two horses had been hitched to trees, and that one of them was white was shown by hair rubbed on the bark. A square gin bottle lay on the spot. Shortly after the crime two men an- swering their description were seen riding away rapidly. Later the defendant had much money, while before he had none. He spoke of it as blood money. He did not try to explain his absence from home on that day. In the case of Cicely v. State, 13 Smedes «& M. (Miss.) 203, to identify the accused as the murderer of a whole family, it was shown that there were bloody footprints on the floor and one set of footprints leading from the house, all of which corresponded with the defendant's feet ; that the murder was done with a broad- axe, and that on the dress of the accused were many specks and spots of blood ; that the defendant had secreted on her person the purse of the deceased with money in it, and that the pocket of deceased's trousers was bloody as from a bloody hand thrust in ; that defendant did not know the amount of money in the purse. Defendant identified by evidence of his presence in the neigh- borhood, tracks leading to his home, and his possession of a weapon. Howard 27. Com., 24 Ky. Law Rep. 950, 70 S. W. 295. S!/ffi<:ie?icy of Identification. An example of an identification held to be sufficient is to be found in Com. v. Roddy, 184 Pa. 274, 289. The following is the deceased's testimony : " Two men came into my bedroom. I asked them what they wanted here, and one of them said, ' Money, by God, and we will have it.' Both men had revolvers, and said, ' Do you see these? ' I said, ' Yes.' They told me if I had any prayers to say I was to say them, that they would shoot me. I told them to shoot, but they did not. Then they tied me, both hands and feet, and carried me out of bed into a rocking- chair and hit me in the mouth, knocking a tooth loose. Then they ransacked the safe. I told them my money was in my vest. They got it; it was about $125 in paper and silver. They burned my feet some before getting my money. They continued to burn AMERICAN NOTES. 202 m my feet, demanding more money or government bonds. They first burned my feet with paper ; afterwards with oil lamps and tallow candles. They ransacked the house from cellar to attic. They went to the cellar, brought up pies, cakes, and milk, and eat and drank. Then they left my house, and I am satisfied the two Roddy boys, brought to my house by the officers, are the same that robbed and tortured me." This is a vivid statement of the occurrences of that night, showing the opportunity Berkey had to see his torturers, to know their voices, their figures, their move- ments, their eyes, the color of their hair, and their relative size and manners. Every peculiarity of each of them must have been literally burned into the memory of both David Berkey and his wife. They were brought to the house of their victim. He looked at them to see if they were the same men he had seen on the night of the 2d of June. His conclusion is, " Yes. I am satisfied they are the same men. My mind is at rest on the sub- ject. I have no doubt." This was a distinct identification, and plainly admissible. . Testimony that the offender " looked pretty near like " the accused is not sufficient identification. Com. v. Snow, 14 Gray (Mass.), 3S5. Positive direct evidence of the identity of the accused is not necessary if the jury are satisfied of the fact. Com. ?', Cunning- ham, 104 Mass. 545. In the interesting case of Udderzook v. Com., 76 Pa. 340, the motive for murder was shown to be the desire to obtain insurance money. The circumstances were as follows : The defendant and the deceased conspired to defraud certain insurance companies. In pursuance of the scheme, the deceased, W. S. Goss, insured his life for $25,000, Goss was thereafter last seen in his shop in company with defendant and a neighbor. After they had gone Goss's shop burned, and a body supposed his, was found. The beneficiary in the policies, aided by her brother-in-law, the defendant, tried to collect the money. More than a year later the defendant was seen in company with one A. C. Wilson at Jennerville, Pa. In the evening they left that town together, driving in the direction of Penningtonville. The defendant reached Penningtonville alone, and his companion was never afterwards seen alive. When the defendant was asked what had become of his companion, he replied that he had left him at 20J ;/ AMERICAN ^•OTES. Parkersburg. Later this companion's body was found, cut into pieces, and i)uii(.d in two holes in the woods between Jennerville and Pt-niiingionville. The question was to identify this body as that of W. S. Goss and to show that he and A. C. Wilson were one and the same. Wilson's movements were traced from about the time of Goss's disappearance, and he was shown to have lived with great privacy. At Jennerville he and the defendant had showed a desire for great privacy. A witness identified a photo- graph of Goss as being also that of Wilson. Letters written by AVilson were in the handwriting of Goss. He wore a peculiar ring belonging to Goss. Wilson had on one occasion recognized one A. C. Goss as his brother and was shown to have corresponded with him. Wilson and Goss were alike drunkards. The jury found these circumstances sufificient to identify the body found as that of A. C. Wilson and of W. S. Goss also, and the de- fendant was convicted. To show that defendant was guilty of arson, it was shown that tracks might have been made by No. 9 shoes and his were that size, that in crossing a ditch the criminal had fallen on his knee and elbow, and that defendant's clothing was slightly discolored at those places. Held not sufficient to identify. People v. Done- burg, 64 N. Y. Supp. 438. Although defendant's tracks were peculiarly like those found in the snow leading from a burned building toward but not near defendant's home, he was not sufficiently identified. Green v. State, III Ga. 139. Bertillon Method of Ide?iti/yifig Criminals. As to methods of identifying persons, the following, taken from the ISLiryland Law Record and found in 9 Grim. Law Magazine, 372, is of interest : '•' The latest method of identifying prisoners which has been introduced into France by M. Alphonse Bertillon, and which is now successfully practised, not only in the chief French prisons, but in Russia and Japan as well, is the exact measurement of the prisoner on his arrival at gaol. His waist, the length and width of the head, the left middle finger, the left foot, the outstretched arms, and three other fingers on the left hand, the left arm from the elbow to the wrist, and the length and width of the ear are AMERICAN NOTES. 2020 rneasured, and the color of the eyes and any particularities are noted down. A photograph is also immediately taken, and by these means the many mistakes which have been made by trust- ing to a photographer only are avoided. The fact that during the two years since this mode has been in operation eight hundred and twenty-six habitual criminals who presented themselves under an assumed name have been identified in France, shows that M. Bertillon's method is superior to any other. It is stated that habitual criminals, particularly English pickpockets, are so con- vinced of the infallibility of the method that they will on no account submit to the measurement, and offer violent resistance whenever the attempt is made to measure them. In such cases we are assured that it is nearly always sufficient to measure the inside of the hat and the boots." Personal Peculiarities for Identification. The following story of the identification of a criminal is derived from the London Tid-Bits : A small lodging-house in the City Road was one morning found to be the scene of a mysterious crime. The occupant of the ground floor had been discovered seated by the table dead, his head resting on his folded arms, and a small penknife buried in his temple. When the police arrived the body had not been moved, but in spite of their careful search, no clue to the crime revealed itself. That he was not alone on the preceding night, a couple of glasses and an empty whiskey bottle clearly testified. Dornton, the detective, first interviewed the landlord. The deceased could not have returned until very late. He frequented a public sporting-house in the neighborhood, and was believed to obtain a living by betting. The detective turned over the letters of the deceased. Only one seemed of any importance, and that a short, ill-spelt note, naming an outsider as the winner of the St. Leger, and advising the deceased to back it heavily. The race had been run the preceding day, and the outsider had won. If the murdered man had acted on his correspondent's advice he should be in pos- session of a considerable sum of money. But with the exception of a few coppers, nothing of value was found. 202/ AMERICAN NOTES. At last, (Icsjiairing of obtaining any further information on the scene, Dornton was about to close his investigation. As he gave one final glance before departing, something in the threadbare carpet caught his attention. Stooping, he picked up a semi-circular i)icce of coarse finger-nail, marked by a fracture extending completely across it, which had continued, probably, some distance along the entire nail. Round this the detective wove his theory of the crime. The deceased, already probably half drunk, had brought with him, to finish their carousal, some casual acquaintance. While the host was becoming more and more unconscious, his guest, drinking but little, determined to rob him of his day's winnings. Irritated by the broken nail catching in his clothing, he with a penknife trimmed it as closely as possible ; then, seeing his com- panion completely at his mercy, murdered him, Carefiilly guarding this slight scrap of evidence, after a moment's reflection, Dornton made his way to the public house mentioned as having been frequented by the deceased. His attention was speedily concentrated on one man. In spite of the assumed jauntiness of his manner, the latter was decidedly ill at ease, and his eyes continually wandered to the door. The low felt hat and cheap kid gloves concealing his hands had the appearance of having been recently purchased, though the state of his boots and clothing suggested anything but an air of affluence. Under the pretence of obtaining a light, Dornton moved, glass in hand, to where the object of his suspicions carelessly lolled, and stumbling, as if by accident, completely saturated the gloves with its contents. The stranger angrily tore them ofif, and, on the middle finger of the left hand, revealed to the detective's watchful eye a short, coarse nail, broken nearly to the quick. A few minutes later he was inside a cab, journeying to the police station, and his full confession at the inquest gave Dornton the satisfaction of having his theory completely verified. Identification of Articles of Property. — Means of Identifybig Property. To identify certain watches in possession of defendants as the ones stolen, the owner of the store may give in evidence the bills showing the numbers on the watches. State v. Fitzgerald, 72 Vt. 142. AMERICAN NOTES. 202 q " A recent case occurred in this Court where one was indicted for murder by stabbing the deceased in the heart with a dirk- knife. There was evidence tending to show that the prisoner had possession of such a knife on the day of the homicide. On the next morning, the han lie of a knife, with a small portion of the blade remaining, was found in an open cellar near the spot. Afterwards, upon -x post mortem examination of the deceased, the blade of a knife was found broken in his heart, causing a wound in its nature mortal. Some of the witnesses testified to the iden- tity of the handle, as that of the knife previously in the possession of the accused. No one, probably, could testify to the identity of the blade. The question, therefore, still remained, whether that blade belonged to that handle. Now, when these pieces came to be placed together, the toothed edges of the fracture so exactly fitted each other that no person could doubt that they had be- longed together, because from the known qualities of steel, two knives could not have been broken in such a manner as to pro- duce edges that would so precisely match." Shaw, C. J., in Com. V. Webster, 5 Cush. 295, 314. Where the defendant is charged with the larceny of gold coins, it may be proved that there were found in his possession the same number of gold coins as was taken from the owner, and that they were of the same denominations. People v. Piggott, 126 Cal. 509. Where the handle of the hammer used in a homicide was found on the premises of the defendant, and much gold coin belonging to the deceased was found in possession of the wife of defend- ant, while at the same time it was shown that defendant had had no work for some time, and an attempted alibi was broken down, the evidence was held sufficient to sustain a conviction. State v. Craemer, 12 Wash. 217. An illiterate witness may identify a document by its general appearance. Com. v. Meserve, 154 Mass. 64. Before possession of the stolen goods can be used as the basis of an inference of guilt, the goods must be proved to be identi- cal with these belonging to the party injured by the crime. Yet such identification need not be absolute. It would be sufficient to show that they are of the same kind as the goods stolen, and were found with other property stolen at the same time that Ls positively identified. Dillon v. People, i Hun, 670. 202 r AMERICAN NOTES. The identification of stolen goods by the owner may be suf- ficient, even though he was allowed to inspect them before being rc(|uired to describe them. State v. Lnll, 37 Me. 246. The identification of a shirt is sufficient when a witness testi- fies that she made it herself and knows the sewing. Lancaster v. State, 91 Tenn. 267. Laundry Marks. The contents of a valise may be identified as belonging to a certain deceased person by comparing laundry marks on clothing in the valise with similar marks on clothing left by the deceased in his trunk. State v. Lucey (Mont.), 61 Pac. 994. Label on Barrels. The label on a barrel of beer was admitted to identify the bar- rel and the place from whence it came. Com. v. Collier, 134 Mass. 203. Color and Smell of Alcohol. To prove an arson, a witness may testify as to the contents of a bottle found near by, that she knew the contents were alcohol by the color and smell. People v. Fitzgerald, 137 Cal. 546. Color of Paper. Where it was shown that the defendant was given a certain check and that when arrested he had chewed a bit of paper be- yond recognition, the chewed-up wad may be shown to be of the same color as other checks like the one given him. People v. Considine, 105 Mich. 149. Cattle Brands. In many western States and in Canada there are statutes mak- ing the presence of a registered brand on cattle evidence as to the ownership of such cattle. Colo. Mills Ann. Stat., §§ 4240, 4251. But an unrecorded brand may be admissible as a mark of identification. Chestnut v. People, 21 Colo. 512. To identify a certain hide as that of a cow that had been stolen, it is proper to put in evidence pieces of the hide, which, when put with the main portion, tend to make out the brand. Hen- dricks V. State, 56 S. W. 55 (Tex.). AMERICAN NOTES. 202 S A recorded brand is evidence of the ownership of an animal marked with the brand. Alexander v. State, 24 Tex. App. 126. Earmarks on animals alleged to have been stolen, testified to by the claimant as his mark, are some evidence of ownership. People V. IJolanger, 71 Cal. 17. A brand on a horse may be proved to establish identity of the horse, even though it is not the brand of the alleged owner. Horn V. State. 30 'I'ex. App. 541. Where defendant was charged with stealing a certain horse which he had sold, the only evidence that the horse sold was the horse stolen was that it bore the same brand. The evidence of identity was not sufficient, because it was shown that the owner of the stolen horse had sold to third parties other horses with his brand on them. Horn v. State, 30 Tex. App. 541. A mule alleged to have been stolen was identified by a pecul- iarly shaped brand. State v. Hill, 96 Mo. 35 7. Bullets, Cartridges^ and Gun-wadding. Winchester rifle shells marked " W. R. A. Co. W. C. F. 40-65 ' were used to identify the defendants as having shot the deceased in People v. Gibson, 106 Cal. 458. Where evidence tends to show that the bullet causing death of deceased was of 38-caliber, the defendant may be shown to have had a 38-caliber revolver at the time of the shooting (State V. Barrett, 40 Minn. 65) ; or that in the defendant's trunk were found cartridges of the same caliber. People v. Minisci, 12 N. Y. St. Rep. 719. In Freeman v. State (Tex.), 72 S. W. looi, the wadding of a gun fired by the defendant was found to be portions of a news- paper, the rest of which was still in the defendant's house. It may be shown that on defendant's premises were found the frame of a pistol still smelling of powder, and several car- tridges, the bullets in which were like that with which deceased was killed, even though the cylinder be not found. People v. Smith, 172 N. Y. 210. Possession of Property Obtained by the Crime. In Com. V. Roddy, 184 Pa. 274, it was shown that two weeks before the murder and robbery, the deceased had in his posses- 202 / AMERICAN NOTES. sion a ten-dollar Confederate bill, and that after the crime the defendant Roddy had a like bill and destroyed it. "The evidence, together with Roddy's declaration about the bill or note, how he came by it, and why he destroyed it, was relevant upon the question of identity. It was not conclusive upon the question, but it related to it, and with other facts relat- ing to the same subject was properly submitted to the jury as part of the chain of circumstances tending to identify the defendants as the perpetrators of the crimes committed." Defendant identified as a burglar by a cut on his liand (the burglar had broken through a window), by having been seen that day with another who was killed at the scene of the crime, and by the fact that he wore shirts taken from another house while the dead burglar wore shoes stolen there. People v. Hogan (Mich.), 8i N. W. 1096. The State may show that the stolen gun was found in the road near where the defendant had been when approached by the officer. HoUengshead v. State, 67 S. W, 114. To identify defendant as the owner of a truck in which stolen goods were found, the State may show that he claimed clothing in it. State v. Yandle, 166 Mo. 589. To identify a shirt as having belonged to the defendant, where a witness had sworn that it did not belong to the defendant, it may be shown that she gave it to a messenger who asked for the defendant's shirt. State v. Houser, 28 Mo. 233. Insiniments with 7vliich Crime was Committed. The defendant was shown, in Bower v. State, 5 Mo. 364, 32 Am. Dec. 325, to have had a cudgel in his possession which was later found near the body of the deceased and with which the killing had been done, and was shown further to be wearing the deceased's hat while his own was near by the body. Where it has been shown that certain tools were used in a burglary, possession of such tools is competent evidence to fasten the crime upon the possessor. People v. Winters, 29 Cal. 658; State V. Morris, 47 Conn. 179 ; State v. Harrold, 38 Mo. 496. To identify the deceased as a burglar it was shown that the tools used came from his place of residence. People v. Larned, 7 N. Y. 445- AMERICAN NOTES. 202 u The presence of burglar's tools on (lefemlanl's farm may be shown wlien he was the only occupant of such farm. People v. Gregory (Mich.), 90 N. W. 414. The State may introduce in evidence, to prove defendant guilty of arson, a flask with kerosene in it marked as with bluing, and may show that defendant's wife previously hail this flask with bluing in it. Morris v. State (Ala.), 27 So. 336. Where a knife was found at the scene of a burglary, and de- fendant was shown to have said the next day that he had lost his knife, the identifi :ation of the knife as his by this and other testimony was held to be sufficient. Bundick v. Com., 97 Va. 783, 34 S. E. 454. Defendant was identified as a burglar by a case-knife, the rim part of which was in his possession, but the broken point was wedged in the door-jamb of the burglarized house. White v. People, I 79 111. 356. A bottle of powder found on the road may be introduced to prove safe-blowing, when it is shown that defendant had a bottle at starting and none at the end of the journey. Edmunds v. State (Tex.), 6t, S. W. 871. Where a mask was found near a window through which a shot had been fired, it may be shown that the defendant was shown the mask without saying where it had been found and asked where he got it, and that he replied that his children had found it and that it had once had a black nose that had been torn off. Murphy v. People, 63 N. Y. 590. Question for the yury. The identification of stolen property is for the jury, and it is error to charge that a banknote stolen " was positively identi- fied." Hill V. State, 17 Wis. 675, 86 Am. Dec. 736. • Proof of Handwriting. Opinions of Persons Acquainted with the Handwriting. " When there is a question as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the supposed writer, that it was or was not written or signed by him, is deemed to be a relevant fact. " A person is deemed to be acquainted with the handwriting of 202 V AMERICAN NOTES. another person when he has at any time seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his auiliority and addressed to that i)erson, or when, in the ordi- nary course of business, documents purporting to be written Ijy that person have been habitually submitted to him." Stephen's Dig. Evid., Art. 51. A witness may not testify as to his knowledge of a signature made by making a mark. Shinkle v. Crock, 17 Pa. 159. The testimony of a person as to his own signature is of no higher character than the testimony of another who is acquainted with his handwriting. Lefferts v. State, 49 N. J. L. 26. Knowledge of Hand Gained from Correspondence. A witness who has become acquainted with handwriting through an official correspondence is competent to testify as to its genuineness. Com. v. Smith, 6 S. & R, 568; U. S. v. Simp- son, 3 P. & W. 437- One who has corresponded with a person is a competent witness as to his handwriting (\Vest v. State, 2 Zab. (N. J.) 212 ; Smith t;. Walton, 8 Gill (Md.), 77; Edelen v. Bennett, 8 Gill (Md.), 87) ; but not if he has merely seen writings addressed to others. Goldsmith v. Bane, 3 Hal. (N. J.) 87. One Who Has Seen Him Write. Diggin's Estate, 68 Vt. 19S ; Com. v. Hall, 164 Mass. 152; State V. Harvey, 131 Mo. 339 ; Karr v. State, 106 Ala. i ; State V. Farrington, 90 Iowa, 673. It is enough that he has seen him write once to render the testimony competent. Com. v. Nefus, 135 Mass. 533 ; Keith v. Lathrop, 10 Cush. (Mass.) 453; Brigham v. Peters, i Gray (Mass.), 139 ; McNair v. Com., 26 Pa. St. 388 ; State v. Stair, 87 Mo. 268 ; Smith v. Walton, 8 Gill (Md.), 77 ;'Edelon v. Bennett, 8 Gill (Md.), 87. One who has seen a person write is a competent witness as to his handwriting (West v. State, 2 Zab. (N. J.) 212; Cook v. Smith, 30 N. J. L. 387) ; but not when he saw the person write for the purpose of thereafter being a witness. Whitmore v. Corey, I Harr. (N. J.) 267. AMERICAN NOTES. 202 w A witness was held to be competent who had seen a person write his name twice thirty-two years before and once twenty- three years before. Wilson r. Van Leer, 127 Pa. 371. Comparison of Handwriting by Experts and the jfury. In the various States of the Union, there can be said to be no general i-ule as to the comparison of disputed writings with genuine ones, except the elementary doctrine that some compar- ison made be made both by experts and by the jury. There are many rules laid down as to the conditions under which such com- parison may be made and as to the writmgs that may be used as a standard. Such evidence is, of course, strictly circumstantial in character. . Sometimes the writing to be used as the standard of compar- ison is required to be admitted to be genuine, sometimes its genuineness is left to the jury, and more often its genuineness is a preliminary question for the Court. Sometimes only such writings as are already before the jury may be used as a standard, but often other writings are admitted. Many States have settled the law on this point by statute, and nearly all the remaining States have attempted to do so. " Comparison of a disputed handwriting with any writing proved to the satisfaction of the judge to be genuine is permitted to be made by witnesses, and such writings, and the evidence of witnesses respecting the same, may be submitted to the Court and jury as evidence of the genuineness or otherwise of the writing in dispute. This paragraph applies to all courts of judi- cature, criminal or civil, and to all persons having by law, or by consent of parties, authority to hear, receive, and examine evidence." Stephen's Dig. Evid., Art. 52. This rule is statutory in England. Substantially the English doctrine is held in Koons v. State, 36 Ohio St. 195 ; State v. Zimmerman, 47 Kan. 242 ; Com. v. Andrews, 143 Mass. 23. Expert opinion is admissible to prove handwriting. Travis v. Brown, 43 Pa. 9 ; Fulton v. Hood, 34 Pa. 365 ; Burkholder v. Plank, 69 Pa. 225 ; Ballentine v. White, 77 Pa. 20 ; West v. State, 2 Zab. (N. J.) 212. 202 X AMERICAN NOTES. Expert testiinony as to handwriting is admissible, altliougli the entire knowledge of the expert on tiie subject is derived from comparison of the disputed writing with writing admitted to be genuine. Miles v. Loomis, 75 N. Y. 287 ; Moody v. Rowfll, 17 Pick. 490; Slate v. Shinborn, 4O N. H. 497 ; Calkins v. State, 14 Ohio St. 222. An expert may give his oj^inion as to wliether a certain speci- men is in a natural or a simulated hand. Com. v. Webster, 5 Cush. 295 ; Moody v. Rovvell, 17 Pick. 490; Reg. v. Shepperd, I Cox Cr. Cas. 237. In Com. V. Webster, 5 Cush. 295, evidence was introduced of three anonymous letters alleged to have been written by the ac- cused, addressed to the city marshal, and attempting to divert suspicion away from the medical college where defendant was professor of chemistry. Expert testimony was allowed to show that the letters were not written with a pen or with a brush, and yet that they were in defendant's handwriting. It was further shown that a small pine stick, about six inches long, and as large as a goose-quill, and having a small wad of cotton which had been dipped in ink wound round one end, was found in the de- fendant's laboratory. Comparison of genuine writings with the one questioned may be made by the jury. Rockey's Estate, 155 Pa. 453. As to the use of other writings for comparison to prove the genuineness of a writing in dispute, the Court says, in State v. Hastings, 53 N. H. 461 : "It is to be received, and then the jury are to be instructed that they are first to find, upon all the evidence bearing upon that point, the fact whether the writing introduced for the purpose of comparison, or sought to be used for that purpose, is genuine. If they find it is not so, then they are to lay this writing, and all the evidence based upon it, entirely out of the case ; but if they find it genuine, they are to receive the writmg, and all the evidence founded upon it, and may then institute comparisons themselves between the paper thus used and the one in dispute, and settle the final main question whether the signature in dispute is or is not genuine." Qualification of a handwriting expert. Wheeler & Wilson Co. V. Buckhout, 60 N. J. L. 102. Cashiers and tellers of banks, whose business it is to compare handwritings and to detect forgeries and counterfeits, are gener- AMERICAN NOTES. 202 y ally held to be qualified experts on the subject of handwriting. Lyon V. Lyman, 9 Conn. 59 ; State v. Phair, 48 Vt. 366 ; People 7). Hewitt, 2 Parker's Cr. Cas. 20 ; Dubois v. Baker, 30 N. Y. 355- An expert is not competent when the basis of his testimony is that he observed the person write several times for the purpose of testifying later. Reese ?'. Reese, 90 Pa. 89. Illegible Writing. Expert testimony is admissible to determine whether a certain written word is " J. my " or " July." Dresler v. Hard, i2r N. Y. 238. Testing an Expert's Opinion. A very broad liberality should be allowed as to the cross-exam- ination of an expert to test the value of his opinion. Other genuine writings, and writings not genuine, may be submitted to him, and his opinion asked as to their authorship, with his reasons in each case. Hoag v. Wright, 174 N. Y. 36 ; Browning v. Gos- nell, 91 Iowa, 448. And it is frequently allowed to test the expert by presenting to him other documents already in the case. Harvester Co. v. Miller, 72 Mich. 272 ; Thomas Z'. State, 103 Ind. 439 ; Brown v. Chenoweth, 51 Tex. 477. But it has been held improper to test an expert with fabricated signatures not already in the case. Gaunt v. Harkness, 53 Kan. 405 ; Tyler v. Todd, 36 Conn. 222 ; Andrews v. Hayden, 88 Ky. 455- Handwriting admittedly genuine may be handed to a witness who has given his opinion as to the genuineness of another writ- ing in order to test that opinion. Bank v. Armstrong, 66 Md. 113- On cross-examination, a person's signature, written in court, may sometimes be used, but only in cross-examination. Com. V. Allen, 128 Mass. 46; U. S. v. Mullaney, 32 Fed. Rep. 370; Bradford v. People, 22 Colo. 157. Weight of Expert Evidence on Hand^vriting. In Re Gordon's Will, 26 Atl. 277, the Court writes as follows : " Handwriting is an art concerning which correctness of opinion is 202 a AMERICAN NOTES. susceptible of demonstration, ami I am fully convincetl that the value of the opinion of every handwriting expert as evidence must depend upon the clearness with which the expert demonstrates its correctness. That demonstration will naturally consist in the indi- cations of similar characteristics, or lack of similar characteristics, between tiie disputed writing and the standards, and the value of the expert's conclusion will largely depend upon the number of those characteristics which appear or are wanting. The appear- ance or lack of one characteristic may be accoimted to coinci- dence or accident, but, as the number increases, the probability of coincidence or accident will disappear, until convictions will be- come irresistible. Thus comparison is rated after the fashion of circumstantial evidence, depending for strength upon the number and prominence of the links in the chain. Without such demon- stration the opinion of an expert in handwriting is a low order of testimony, for, as the correctness of his opinion is susceptible of ocular demonstration, and it is a matter of common observation that an expert's conclusion is apt to be influenced by his em- ployer's interest, the absence of demonstration must be attributed either to deficiency in the expert or lack of merit in his conclu- sion. It follows that the expert who can most clearly point out will be most highly regarded and most successful." Evidence of handwriting experts is of low degree. Life Ins. Co. V. Brown, 30 N. J. Eq. 193, 32 N. J. Eq. 809. The opinion of a handwriting expert is of little weight unless accompanied by an ocular demonstration. Gordon's Case, 50 N. J. Eq. 397, 52 N. J. Eq. 317. Comparison of Hands by Lay Witnesses. It is not permissible for a comparison of handwriting to be made by a witness who is not an expert, for presumably the jury is equally well qualified with him to make the comparison. Page V. Homans, 14 Me. 482 ; Lowe v. Dorsett, 125 N. C. 301 ; Nil- ler V. Johnson, 27 Md. 13 ; Sirother v. Lucas, 6 Pet. 766. Refreshing Memory of Hajidwriting. But though a lay witness may not express his opinion based upon a comparison of hands, if he is competent as having seen AMERICAN NOTES. 202 a * the person write whose signature is in dispute, or as having corresponded with such person, then he may, for the purpose of refreshing his memory, examine in court the specimens which are the basis of his knowledge of the handwriting. National Bank v. Armstrong, 66 Md. 115; Thomas v. State, 103 Ind. 419; McNair z'. Com., 26 Pa. 390; Smith v. Walton, 8 Gill, 85. A witness may refresh his memory of handwriting by inspect- ing a genuine paper, but he must testify independently of the comparison. McNair v. Com., 26 Pa. t^S^. Standard of Comparison. Writings be/ore the Jury. Many States, in allowing a comparison of disputed writings to be made by the jury or by experts, restrict the comparison to writings already before the jury for other purposes. Snider v. Burks, 84 Ala. 56 ; Miller v. Jones, 32 Ark. 343 ; Tubker v. Hyatt, 144 Ind. 635; Brobston v. Cahill, 64 III. 358; State V. Batson, 108 La. 479 (in crim. cases); People v. Parker, 67 Mich. 222. Writings Already before the Jury afid Admittedly Genuine. Some States also require that the standards of comparison shall be admitted to be genuine, even though already before the jury. Rogers v. Tyler, 144 111. 652 ; Geer v. M. L. & M. Co., 134 Mo. 85. (But see St. 1895, P- -^4) Rev. St. 1899, § 4679.) The jury may compare a disputed handwriting with one ad- mittedly genuine already in evidence for another purpose. Wil- liams V. Drexel, 14 Md. 566. Standard May be Proved Genuine. But many States allow writings to be used by both experts and the jury for comparison, if such writings have been satisfactorily proved to be genuine, even though they are not already in the case. State v. Stegman, 62 Kan. 476; Lyon v. Lyman, 9 Conn. 60; Maryland, Pub. Gen. L. 1888, Art. 35, §6; Moody v. Rowell, I 7 Pick. 490 ; First Nat. Bk. v. Carson, 48 Neb. 763 ; Mutual B. L. Ins. Co. v. Brown, 30 N. J. Eq. 201 ; Travis v. Brown, 43 Pa. 9 ; Adams v. Field, 21 Vt. 264 ; Carter v. Jackson, 58 N. H. 157 ; Bell v. Brewster, 44 Ohio St. 696. 202 b * AMERICAN NOTES. Papers may be admitted in some States for the sole purpose of comparison. State v. Ihompson, 80 Me. 194, 6 Am. St. Re]). 172, 13 .Xtl. S92 ; Com. V. Allen, 128 Mass. 46; caritra. People V. Parker, 67 Mich. 222 ; State v. Thompson, 132 Mo. 301 ; Stokes V. U. S., 157 U. S. 187. Standard Admittedly Genuine. Some States apparently allow writings not already before the jury to be used as standards of comparison only if they are ad- mitted to be genuine. Morrison v. Porter, 35 Minn. 425 ; Wilson V. Beauchamp, 50 Miss. 32 ; Moore v. U. S., 91 U. S. 270 ; State V. Clinton, 67 Mo. 385. (See Rev. Stat. 1899, § 4679.) Letters admitted to be genuine may be given to the jury for comparison, but such letters should be selected for that purpose whose contents are not likely to influence the jury in any way. Gambrill v. Schooley, 95 Md. 260. Genuineness of the Standard of Comparison. Before a specimen may be used for comparison, its genuine- ness must be beyond doubt. " The whole doctrine of comparison presupposes the existence of genuine standards. Comparison of a disputed signature in issue with disputed specimens would not be comparison in any proper sense. When the identity of any- thing is fully and certainly established, you may compare other things with it that are doubtful, to ascertain whether they belong to the same class or not ; but when both are doubtful and uncer- tain, comparison is not only useless as to any certain result, but clearly dangerous, and more likely to bewilder than to instruct a jury. If disputed signatures were admissible for the purpose of comparison, a collateral inquiry would be raised as to each stand- ard \ and the proof upon this inquiry would be comparison again, which would only lead to an endless series of issues, each more unsatisfactory than the first, and the case would thus be filled with issues aside from the real question before the jury." Univ, of Illinois V. Spalding, 71 N. H. 163. Writing offered as a test for comparison must be proved con- clusively to be genuine. Baker v. Haines, 6 Whart. 284 ; Depue V. Place, 7 Pa. 428 ; Travis v. Brown, 43 Pa. 9. AMERICAN NOTES. 202 C * Genuineness of Standard a F reliminary Question for the Judge. To avoid the introduction of collateral issues before the jury and the consequent confusion of the main issue, the question of the genuineness of the standard should not be submitted to the jury at all. It should be treated as a preliminary question of ad- missibility to be settled by the Court. In this case of University of Illinois V. Spalding, 71 N. H. 163, the Court says : "The true rule is that, when a writing in issue is claimed on the one hand and denied on the other to be the writing of a particular person, any other writing may be admitted in evidence for the mere pur- pose of comparison with the writing in dispute, whether the latter is susceptible of or supported by direct proof or not ; but, before any such writing shall be admissible for such purpose, its genuine- ness must be found as a preliminary fact by the presiding judge, upon clear and undoubted evidence." This rule is adopted by statute in some States and by the courts in others. Colorado, St. 1893, p. 264 ; California, C. C. P. 1872, § 1944; Florida, Rev. St. 1892, § 1121; Kentucky, Stats. 1899, § 1649; Missouri, Rev. St. 1899, § 4679; New York, Laws 18S8, c. 555 ; Montana, C. C. P. 1895, § 3235 ; Wiscon- sin, Stats. 1898, § 4189; Costello V. Crowell, 139 Mass. 590; State V. Thompson, 80 Me. 194 ; Travis v. Brown, 43 Pa. 9 ; Rowell V. Fuller, 59 Vt. 692. Letterpress and Photographic Copies. A letterpress copy of handwriting cannot be used for compari- son. Cohen v. Teller, 93 Pa. 123. Nor may photographic copies be so used. Vanderslice v. Snyder, 4 Pa. Dist. 424 ; Ulmer v. Centner, 3 Penny (Pa.), 453. Verification of Dates and Times. Type, Paper, and Ink — To determine the genuineness or (iate of a writing, consideration may be given to the ink, the paper, and the type. McCorkle v. Binns, 5 Binney, 348 ; Dubois V. Baker, 30 N. Y. 361. Expert opinion is admissible as to the character of the ink, the paper, or the type of a writing, to aid in determining its authen- 202d* AMERICAN NOTES. ticity. Owen 7'. Mining Co., 9 C. C. A. 338, 61 Fed. Rep. 6; Johnson v. State. 2 Ind. 654 ; Jones v. Finch, 37 Miss. 4C8. Difference in Ink. To show that two documents were signed at different times, it may be shown that they were written with different inks. Porell 7'. Cavanaugh, 69 N. H. 364. Alterations and Erasures. Expert testimony is very generally admitted to determine the time of an erasure or an alteration, wliether it was before or after the execution of the instrument, or whether there actually has been any alteration at all. Ross v. Sebastian, 160 111. 604 ; Fee V. Taylor, Zt^ Ky. 263 ; Dubois v. Baker, 30 N. Y. 361 ; Steven- son V. Gunning, 64 Vt. 601 ; Ballentine v. White, 77 Pa. 26. Fixing Time. It is admissible to prove the time when a certain occurrence, foreign to the case, took place, for the purpose of fixing by it the time when a certain act, within the case, was done. Quintard v. Corcoran, 50 Conn. 38. A letter cannot be introduced to establish the time of its receipt. Com. v. Burns, 7 Allen (Mass.), 540. Conversation, in order to be admissible to fix a date, must have reference to something which tends to establish it. Fisk v. Cole, 152 Mass. 335. In order to show whether the defendant had shaved his mous- tache before or after the time of a homicide, one witness was allowed to say that it was not shaved on the day of a certain alter- cation in a store, and the date of that altercation was proved by another witness. Com. v. Chance, 174 Mass. 245, 75 Am. St. Rep. 306. Where the date of a receipt is in issue, the time the money was actually received is relevant. Armstrong v. Burrows, 6 Watts. (Pa.) 266. To fix the time he met the defendants, witness may say that it was the day before he heard of the safe-breaking. State v. Ells- wroth, 130 N. C. 690. To show that a burglary was done before sunrise, which oc- AMERICAN NOTES. 202 e * curred at 7.04, it was proved that the owner knew of the burglary between 7 and 7.30 a. m., and that the acts could not have been done in so short a time. Taylor v. Terr. (Ariz.), 64 Pac. 423- To show that two witnesses are testifying in regard to the same place and time, they may give in evidence acts and statements at that time to identify it. " Any circumstance or act occurring at that transaction and remembered by both witnesses would show that they were testifying to the same occasion and would be clearly competent. So we are of opinion that the conversation of the parties or any declarations made at the time are to be re- garded as of the nature of verbal acts, and admissible for the purpose of identifying the occasion of which the witnesses speak. Statements used for this limited purpose are admitted without regard to the truth of the facts stated." Earle v. Earle, 1 1 Allen I. Evidence as to Handwriting. A recent case in which the admissibility of evidence as to handwriting is authoritatively discussed, both at common law and under a modern statute, is People v. Molineux, 168 N. Y. 264, 318. There the trial court admitted as standards of comparison three classes of writings : First, fifty-six specimens conceded by the defendant to be genuine ; second, seven specimens written by the defendant at the request of an expert, after the defendant was suspected but before his arrest, for the purpose of comparison by that expert ; and, third, certain letters written, as claimed on the part of the prosecution, by the defendant in the names of H. C. Barnet and H. Cornish. The purpose of the evidence was to show that the defendant addressed a certain package, containing poison, to one Harry Cornish, which poison was later taken by Mrs. Katharine J. Adams with deadly effect. The New York Statute provides that " Comparison of a dis- puted writing, with any writing proved to the satisfaction of the Court to be genuine, shall be permitted to be made by witnesses in all trials and proceedings." The defence contended that this statute permits comparison only in case the " disputed writing " is itself in issue. But the Court says (page 324) : " We think it too clear for extended argu- 202 f* AMERICAN NOTES. mcnt that the 'disputcil writing' referred to by the statutes is any writing which one i)arty \\\iOX\ x trial seeks to prove as the genuine liandwriting of any person, and which is not admitted to be such, provided that the writing is not inadmissible under other rules of evidence. ... If a disputed handwriting is itself either a fact in issue or a fact relevant to the issue, it may be proved by the means pointed out by the statutes." The Court hold that all three standards were admissible, pro- vided their genuineness was established by proper evidence. The first class of writings was beyond question admissible. The second class was also admissible. The Court says : " Writings created post litem inotavi are inadmissible in favor of a party creating them. But we have found no case holding that such writings should be excluded when offered by the adverse party." .'Vs to the letters written in the names of Barnet and Cornish, which had been introduced in evidence for other purposes, but were also used as a standard of comparison, it is held that they were properly used as standards in case they were proved to the satisfaction of the Court by evidence that was admissible under the general rules of the common law for that purpose. In crim- inal cases such genuineness must be established beyond a reason- able doubt. Nor even then can such standards be used if they are incompetent on some other ground, as it was here held the Barnet letters were. See note on this case after Chap. VII. " Poisoning Cases." Belief of Witness as to Handwriting. If a witness is competent to testify as to handwriting, his belief is admissible, though it be not a positive one. The following is taken from the trial of Richard P. Robinson, as reported in " Re- markable Trials," page iSi : — Joseph Hoxie, Sr., employer of the defendant, was examined by Mr. Morris. Q. Did you become acquainted with his handwriting from seeing him write? A. I have seen him write frequently. Mr. Morris then handed to the witness a MS. book (being the private diary of Robinson), and asked him if that was in the handwriting of the prisoner. The witness replied I dare not AMERICAN NOTES. 202^* swear it is j there is a considerable variety of hands in the book itself. Q. Can you see any part of the book where you can identify the prisoner's handwriting? A. Some parts of the book look something like the character of his handwriting ; I have little opportunity of judging of any part of his writing except from what I have seen in my books, and that is a plain business-hand character — unlike what I see generally in the book. On looking carefully over the book, I cannot see any writing that I would venture to swear positively to be his. I would not like to swear positively to the handwriting of any man in the world, and if the Court please I will state my reasons. Q. Is it because you would not like to swear to the hand- writing of any man in the world that you do not choose to swear to the handwriting in that book? A. No, sir ; that is only one of my reasons ; there are some parts of the book where there is writing that I believe to be the prisoner's, but I shall hesitate to swear to it positively. Q. Please, sir, point out such parts as you believe to be his. A. If I say even that I believe the parts to be his, I should qualify my assertion by stating that I was in doubt whether the handwriting was his, or that of another person in my employ, whose handwriting is very similar to what I see throughout the book. Q. What person do you mean, sir? A. Mr. Francis P. Robinson. Q. Is he in New York, sir? A. He is not ; he is in Europe. Q. When did he go to Europe? A. On February 26 last. Q. Look at the latter part of the book, sir, and at the dates, and see, after the date of which you speak, whether you find any handwriting that you believe to be the writing of the prisoner. Mr. Maxwell objected to this course of the examination as illegal, and as not being within the ordinary rule of evidence. Mr. Phenix replied, and after a brief technical discussion Judge Edwards decided that it was quite proper to ask of the witness his belief as to the handwriting of the prisoner, and that his belief on the subject was admissible testimony. 202 // * AMERICAN NOTES. The Trial of Richard P. Robinson. On June 2, 1836, Richard P. Robinson was put on trial in New York City for the murder of Dorcas Doyen, alias Helen Jewett. It is a good illustration of successful defence against strong in- criminating circumstantial evidence. There was an unusual amount of interest taken in the case, not only because of the atrocity of the murder, but because of the romantic and abandoned character of the life of the beautiful Helen Jewett. The deceased, whose real name was Dorcas Doyen, was born of respectable parents, but went wrong morally at the early age of eleven. The lad with whom she consorted was, however, sent to sea, and Dorcas reformed. She was adopted into a wealthy fom- ily, was educated by them, and grew to be a beautiful and accom- plished young lady. One day she was confronted by the sailor with whom she had consorted in youth, and a new intimacy sprang up. The affair was discovered, and the girl was cast out and disowned by the family who had done so much for her. She drifted from city to city, now being on the point of marrying a wealthy man of good repute, who was warned by an anonymous letter, and now being in want and distress. At last she became a resident of a house of prostitution in New York. She had orig- inally been decoyed into the business, under the pretence of giving her work as a seamstress. On April 10, 1836, the girl, then known as Helen Jewett, was found murdered in her bed in the house of prostitution. The defendant was a young man of good family, who was in the employ of a prominent business house in the city. The young man had been living a fast life, and was known at the house of prostitution in question, and in the lower world of New York gen- erally, as Frank Rivers. He had met Helen Jewett, and the two had fallen violently in love. After consorting together for some months, his love cooled. Rumors of other sweethearts, and even of an approaching mar- riage, reached Helen's ears ; she became very jealous, and even threatened to expose the defendant to the world as the profligate he really was. All this was proved to show the motive that the defendant had to commit such a crime. AMERICAN NOTES. 202 I * The further evidence to show that the defendant was actually the man who killed Helen Jewett was as follows : The keeper of the house of prostitution, one Rosina Townsend, testified that she saw the defendant, known to her as Frank Rivers, at her house on the night in question ; that she herself admitted him and recog- nized him, although he had drawn his cap over his face and had drawn his cloak about his mouth and chin ; that she had later, about IIP. M., taken a bottle of champagne to the room then occupied by Helen Jewett and the defendant, and that she dis- tinctly saw the defendant lying on the bed, noting particularly a certain bald spot on the back of his head ; that before daylight the next morning she was roused, and found Helen Jewett dead, with her head split open and the bed-clothing all about her body on fire. Two of the girls who were inmates of the house also testified that the defendant, known to them as Frank Rivers, was with Helen Jewett that night. The murderer, in escaping from the house, had carried down Helen's lamp, and got out of the back door, arousing no one. One girl had heard the sound of a heavy blow, followed by a moan, and left her room to investigate ; but there was no further noise, and she desisted. The officers, upon investigation, found a cloak in the back yard, a cloak that was proved to have been worn on that and other nights by the defendant. It was identified by the material, the color, the style, and by a peculiarity of a cord with a silk tassel that was attached to the cloak. When the defendant was ar- rested, he was asked by the officers if he possessed such a cloak, and he said not, and pointed to another as the only cloak he ever wore. In a near-by yard was found a hatchet marked with blood, un- doubtedly the weapon with which the crime was committed. The janitor of the store at which the defendant worked swore that he had missed the hatchet belonging to that store a day or two before the murder, and further swore that this was the hatchet formerly at the store. In their days of affection the defendant and Helen Jewett had exchanged miniatures. The miniature of the defendant was proved to have been in Helen's possession two days before the murder, and the morning after the murder it was in the possession of the defendant. 202J ♦ A.MKklCAX NOTKS. The defence was conducted unusually well. The character of the witnesses for the prosecution was bitterly attacked with telling effect. Even the judge instructed the jury that the testimony of prostitutes is very weak. I'iie evidence of the officers of the law was weakened by showing that they were on friendly terms with Rosina Townseml. Some inconsistent statements were proved. Perhaps the most effective circumstance that was brought out on the part of the defence was the fact that two of the frequenters of this house of prostitution went by the name of Frank Rivers, When Rosina Townsend admitted this on the stand, the large court-room was filled with mingled cheers and hisses, indicating the various sympathies of the vast crowd in attendance. Through- out the entire trial, in fact, a seething mob assailed the doors, often numbering thousands, and on one day the C^ourl was forced to ad- journ, to obtain a great number of constables, and to threaten the crowd with the militia. Only after clearing the room of specta- tors could the trial at that time proceed. The defence made a great effort to discredit Rosina Townsend's testimony that she saw the defendant in Helen Jewett's bed on the night of the murder. She had identified him positively by the unusual bald spot. It was attempted to show that the bald spot in question was not at that time visible, and that it did not become visible until the defendant, while in prison, and upon his physician's advice, had his head shaved because of falling hair. The shaving of the head and the presence of the spot were com- mented upon by the papers, and Rosina Townsend might have read of it. On the other hand, however, the prosecution at- tempted to show that she had mentioned the bald spot to several persons before the defendant's head was shaved. Evidence was introduced to show that there was little light at the door when " Frank Rivers" was admitted that night, and that therefore Rosina Townsend might have been mistaken in her identification of the person admitted. Rosina Townsend and the other inmates of the house had testified that "Frank Rivers" arrived at the house at nine or nine thirty in the evening. The defence gave evidence of a partial, but at the same time very suc- cessful, alibi. A respectable grocer testified that on that evening the defendant had bought half a dollar's worth of cigars at his store and had remained there smoking until a quarter after ten. This store was over a mile away from the scene of the murder. AMERICAN NOTES. 202 k * The grocer was not well acquainted with the defendant, but he had seen him a number of times, and he related definite circum- stances indicating that he was not mistaken in this case, as that he had compared watches with the defendant when the clocks were striking ten, and he identified the defendant's watch. The defendant's statement to the officers that he had no such cloak as the one found in the yard was explained by the fact that the cloak in question, which he actually had been wearing, did not in fact belong to him, but to one Gray, who had given it to the defendant as security for money loaned. It appeared that the murderer, in escaping the back way, would have been obliged to scale a whitewashed fence, and there was evidence that when defendant was arrested his trousers were marked with some white substance. Evidence on the part of the defendant indicated that these white marks were paint marks obtained in the newly painted basement of the store where he worked. A silk handkerchief bearing the name of another frequenter of the house, known there as Bill Easy, was found under Helen Jewett's pillow at the time of the finding of her body ; but the prosecution introduced Bill Easy himself to explain how the hand- kerchief came to be there. The prosecution introduced a drug clerk, who swore that the defendant, known to him then as Mr. Douglas, attempted a few days prior to the murder to purchase arsenic to kill rats. He identified the defendant with positiveness, but upon a vigorous cross-examination was said to have become " completely con- founded." After a charge to the jury that was on the whole favorable to the defendant, the Court commenting with severity upon the char- acter of the State's witnesses, the jury returned a verdict of not guilty, after an absence from the court-room of ten minutes. Very naturally, Robinson left New York, and is said to have married and become the father of a large family. This case is fully reported in " Remarkable Trials," published in 1863. CHAPTER V. EXCULPATORY PRESUMPTIONS AND CIRCUMSTANTIAL EVIDENCE. The law of England recognizes several presump- tions, /z^rw et de jure, which create entire or partial exemption from criminal responsibility ; for instance, that an infant under the age of seven years cannot be guilty of crime, that an infant above that age and under fourteen years shall be priin.i facie adjudged doll incapax, and that, as to certain offences con- nected with physical development, a mmor under the age of fourteen years shall be conclusively pre- sumed to be incapable of committing them, no evi- dence being admissible to the contrary {a). Such also is the presumption that offences committed by the wife in the presence of her husband shall, with certain exceptions, be considered to have been committed by his coercion (^). But the presump- tions which concern the subject of this essay are of a different kind, consisting mainly of maxims drawn from well-digested experience, grounded upon con- siderations of natural equity, and framed for the purpose of securing a candid construction of the actions and motives of our fellow-men. They are in truth but particular enunciations of strict justice. An enumeration of some of the principal of these presumptions will form the subject of this Chapter. [a] I Hale's P. C. chs. 3 and 58 ; 4 BI. Comm. chs. 2 and 15, \b) I Hale's P. C. c. 7 ; 4 Bl. Comm. c. 2. 204 EXCULPATORY PRESUMPTIONS. 1. In tlie investigation and estimate of crimina- tory ex'iclcncc tlicre is an antecedent prn/u'i fade presumption in favour of the innocence of the party- accused, grounded in reason and justice, and recognized in judicial practice ; which presumption must prevail until it be destro)ed by such a counter- vailing amount of legal evidence of guilt as is calculated to produce the opposite belief {c). It must be admitted that in the aggregate, the number of convictions vastly exceeds that of acquittals, and that tlie probability is that, in a given numljer of cases, far the greater number of the parties accused are guilty ; but according to all judicial statistics, and under every system, a considerable proportion of the persons put upon trial are legally innocent. In any particular case, therefore, the party may not be guilty, and it is impossible, without a violation of every principle of justice, to act upon the contrary presumption of a superior probability of guilt. It is therefore a settled and inviolable principle, that till the contrary be proved, the accused shall be considered as legally innocent, and that his case shall receive the same dispassionate and impartial consideration as if he were really so.^ 2. It would be foreign to the subject of this essay to discuss the considerations which affect the credibility of evidence in general, such as the intregrity, disinterestedness and ability of the witnesses, the consistency of their testimony, its conformity with experience, and its agreement with {c) See the language of Lord Gillies in Rex v. APKinley, 33 St. Tr. 275 at col. 506. EXCULPATORY PRESUMPTIONS. 205 collateral circumstances, — since these considerations apply to circumstantial only in common with all other testimonial evidence. It has been profoundly observed, that of all the various sources of error, one of the most copious and fatal is an unreflecting- faith in human testimony (c/) ; and it is obvious that all reasoning upon the relevancy and effect of circumstantial evidence presupposes its absolute verity, and that such evidence necessarily partakes of the infirmities incidental to all human testi- mony ; and experience has abundantly shown that facts apparently of the most convincing character have been fabricated and supported by false testimony. Every consideration, therefore, which detracts from the credibility of evidence in the abstract, applies a fortiori to evidence which is essentially indirect and inferential. In such cases, falsehood in the minutest particular more or less necessarily throws discredit upon every part of a complainant's statement. Hence, since facts can never be mutually inconsistent, or, as it has been well expressed, " one truth cannot contradict another " (). 10. As is the case with other presumptions, so the inference of guilt from the recent possession of stolen property may be rebutted by circumstances which create a counter-presumption : as where the property is found in the prisoner's possession under circumstances which render it more probable that some other person was the thief. Therefore, where, on the trial of a mother and her two sons for sheepstealing, it was proved that the carcass of a sheep was found in the house of the mother, it was considered that the presumption arising from the possession of the stolen property immediately after the theft was rebutted so far as respected her, by the circumstance that ?7ia/e footsteps only were found near the spot from which the sheep had been treaties covering almost the whole of the civilized world, permanent escape is extremely difficult. («) J^ex V. Crossfield, 26 St. T. at col. 217. (. Green, 35 Conn. 203), and by proof that defendant showed indifference as to his wife's death. People v. Greenfield, 23 Hun, 454 ; affirmed 85 N. Y. 75- Where a husband is charged with cruelty or violence towards his wife, there is a legal presumption of his innocence, arising from their relation, and the mutual affection by which it is com- monly accompanied. State v. Green, 35 Conn. 205. Prestimption of Innocence. In Greenleaf on Evidence, § 34, it is said : " Thus, as men do not generally violate the penal code, the law presumes every man innocent ; but some men do transgress it, and therefore evidence is received to repel this presumption. This legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence to the benefit of which the party is entitled." See also Coffin v. U. S., 156 U. S. 432. But the statement that the presumption of innocence is to be regarded as evidence is very generally disapproved and is wholly illogical. See State v. Smith, 65 Conn. 283 ; Agnew v. U. S., 165 U. S. 36 ; Thayer, Prelim. lYeatise on Evid., p. 551, and Wigmore's note to § 34, Greenleaf on Evid., 1 6th ed. The presumption that life continues relieves the prosecution of AMERICAN NOTES. 237 c the necessity of introducing evidence to show that life continued to exist up to the moment of the fatal blow. The presumption of innocence does not overcome the foregoing presumption. "The prisoner's child was seen alive in her arms, at half-past six o'clock in the morning, healthy and vigorous ; and at eleven at night it was found dead, with marks of suffocation on its person. The presumption then is, that it was alive when these marks were impressed." Com. v. Harman, 4 Pa. St. 269, 273. Where defendant was charged with the murder of his daughter, the jury should be charged that innocence is presumed, but not that the law presumes an affection for one's child. Hawes v. State, 88 Ala. 37. The presumption of innocence casts the burden of proving guilt upon the State, but it does no more. While it calls for evi- dence from the State, it is not itself evidence for the accused. State V. Smith, 65 Conn. 283. Self- Defence in Homicide. The accused may show the imminence of danger to himself from the deceased, and likewise his apprehension of danger. In Duncan v. State, 84 Ind. 204, he was allowed to testify that he believed his life to be in danger. State v. Collins, 32 Iowa, 36 ; Williams v. Com., 90 Ky. 596 (where such belief was admitted after proof that deceased had pointed a gun at defendant). See Com. v. Crowley, 165 Mass. 569; cotifra, as to defendant's belief and apprehensions. State v. Gonce, 87 Mo. 627. The conduct of the deceased at the time of the homicide may be proved to support the claim of self-defence on the part of the accused. Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Williams v. People, 54 111. 422 ; Frody v. State, 67 Tenn. 349. The manner in which the deceased advanced upon the defend- ant may be shown. Frody v. State, 67 Tenn. 349. The defendant may show that deceased made a vicious as- sault upon another just prior to the homicide, but he cannot show that such other person's nerves and mind were perma- nently injured. State v. Sorenson, 32 Minn. 118; 19 N. W. 73S. The defendant in homicide may show that the deceased said 237^ AMERICAN NOTES. before death, " I would have gotten him if he had not been too quick for me," as tending to prove self-defence. Brown v. State, 74 Ala. 4 78. The defendant may show that he intervened in a quarrel be- tween deceased and another and may prove the character of that quarrel. Prior ?'. State, 77 Ala. 56. A wife who killed her husband may show that he was attack- ing her with a hoe and that he had at other times attacked and threatened her. Williams v. State (Tex.), 70 S. W. 756. The defendant's reputation for peace is relevant to show the probability that he acted in self-defence. State v. Cushing, 14 Wash. 527, 53 Am. St. Rep. 883. But evidence that the defendant asked another to go to the assistance of the deceased after the injury is no evidence to prove self-defence. State ?'. Roberts, 63 Vt. 139. Where the defendant claimed that he killed deceased defend- ing himself from a mob, he may prove the cries of the mob from the time it formed to show its temper and purpose. Goins v. State, 46 Ohio St. 457. Previous Attacks by Deceased. The defendant, in order to corroborate other evidence of self- defence, may show that the deceased had made a previous attack on him. Gunter v. State, in Ala. 23, 56 Am. St. Rep. 17; State V. Graham, 61 Iowa, 608; Jackson v. State, 28 Tex. App. 108. But such evidence is not admissible where there is no evidence upon which to base a reasonable inference that the defendant acted in self-defence. State v. Jefferson, 43 La. Ann. 995. Attacks by Deceased on Others. To show who was the aggressor where evidence is conflicting, the defendant may show that the deceased attacked others on the way to the scene of the homicide. State v. Beird (Iowa), 92 N. W. 694. Reasonable Apprehension of Danger. Where the defendant, charged with assault with intent to kill, had fired at individuals whom he believed had been members of a AMERICAN NOTES. 237^ bnnd of Whitecappers that had assaulted the defendant, evidence of the W'hitecapping assault is admissible to show the ground for the defendant's apj^rehension of danger when he fired. Davids v. People, 192 111. 176. The defendant, in homicide, may not prove that the deceased had had fears of an attack by other parties. State v. Patrick, 48 N. C. 443 ; Woolfolk v. State, 85 Ga. 69 ; Com. v. Schmous, 162 Pa. 326. In Boyle v. State, 97 Ind. 322, the defendant was allowed to testify that the deceased had told him of assaults made by deceased upon others and that he preferred a knife to a gun. The defendant may show that he had been told that deceased was a dangerous man, where the issue is self-defence, to show that he had reasonable ground for apprehension. State v. Cross, 68 Iowa, 180; People v. Powell, 87 Cal. 348, 11 L. R. A. 75. The defendant may not prove that he told a third party that he was afraid of the deceased, when the latter had at that time done nothing to excite fear. State v. Carey, 56 Kan. 84, 42 Pac. 371. Where the claim was self-defence the defendant was not al- lowed to prove certain previous acts of precaution on his part to show his fear of the accused. Nunn v. Com., t^t, S. \V. 941. Evidence that defendant was in such nervous condition as to be likely to apprehend violence and danger is not admissible. State V. Shoultz, 25 Mo. 128; State v. Sorenson, 32 Minn. 118. The belief of the defendant that the deceased would carry out his threat to kill is not admissible. People v. Ryan, 55 Hun, 214. Defendant may prove that deceased had said in defendant's presence that he carried firearms. People v. Adams, 137 Cal. 580. In such case the State may show that deceased was not armed. Ibid. Intention of the Deceased. What the real intention of the deceased toward the defendant was is immaterial on the question of self-defence ; it is the appearance of intention as presented to the defendant that must justify him. People v. Fitchpatrick, 106 Cal. 286, 39 Pac. 605. Yet surely the real intention is some evidence as to what the appearance of intention was. 237/ AMERICAN NOTES. Size and Strength of Deceased. The defendant may show that the deceased was larger and stronger than himself. Smith v. U. S., i6i U. S. 85 ; Com. v. Barnacle, 134 Mass. 215, 45 Am. Rep. 319. The defendant was allowed to show that he was small, weak, and nearly blind, while deceased was violent and powerful. Brumley v. State, 21 Tex. App. 222, 17 S. W. 140. The defendant may show that the deceased was a large man, was in the habit of carrying arms, and started the fight. State v. Yokum (S. D.), 84 N. W. 389. Apprehension of Others. The defendant is not allowed to show that third persons thought or said he was in danger from the deceased. Hudgins V. State, 2 Ga. 173; State v. Rhoads, 29 Ohio St. 171 ; State v. Summers, 36 S. C. 479 ; contra, Stroud v. Com. (Ky.), 19 S. W. 976. But in People v. Lilly, 38 Mich. 270, third parties were al- lowed to testify that deceased's conduct was so violent as to make them afraid. And the defendant may prove that third parties had told him that the deceased was a dangerous man. Childers v. State, 30 Tex. App. 160, 16 S. W. 903. In Phipps V. State, 36 Tex. Cr. R. 216, t,() S. W. 753, an officer was allowed to say that the reason he followed deceased to defendant's place of business was that he looked for trouble. Hatred of Defendant by Deceased. Letters of deceased to third parties, showing bitter hatred of defendant, the contents of which had been communicated to the defendant, may be given in evidence. Ball v. State, 29 Tex. App. 107, 14 S. W. 1012. Previous difficulties and ill-feelings may be proved by the de- fendant in corroboration of other evidence reasonably indicating that the act may have been in self-defence. DeForest v. State, 21 Ind. 23; State v. Schleagel, 50 Kan. 325 ; Russell v. State, 1 1 Tex. App. 2 88. AMERICAN NOTES. 237^ Self- Defence — Threats of Deceased. Threats made by the deceased against the accused are admis- sible whether they were communicated to the accused or not. If communicated, they would assist in proving self-defence, and that the defendant was under a reasonable apprehension of dan- ger. If uncommunicated, they would at least tend to show that the deceased was the aggressor. " The philosophy of the matter is that where there has been an encounter, and it is not shown by direct evidence who was the assailant, threats of an intention to assail are some evidence of an assault having been made by the one who made the threats." Wilson v. State, 30 Fla. 242 \ Stokes V. People, 53 N. Y. 174 ; State v. Evans, 33 W. Va. 426 ; Babcock v. People, 13 Colo. 515. The defendant may show that he fired because he thought the prosecuting witness was advancing with a gun, though it actually was an umbrella, and to show ground for such appre- hension he may prove prior threats and altercations. Enlow V. State, 154 Ind. 664 ; Johnson 7-'. State (Miss.), 27 So. 880 (similar). Previous threats of the deceased admitted as a link in the evi- dence of self-defence. Harkness v. State (Ala.), 30 So. 73 ; Bell V. State, 69 Ark. 148. Previous threats of the deceased may be proved as tending to show that the accused acted in self-defence. Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 50 ; Williams v. People, 54 111. 422 (threats to " clean out and whip" the defendant); Brumley v. State, 21 Tex. App. 222 (threats to kill) ; Ball v. State, 29 Tex. App. 107 (same). Threats by the deceased against defendant because of slan- ders published by the latter may be proved. State v. Bartlett, 170 Mo. 658, 59 L. R. A. 756. Defendant may prove threats of the deceased to kill him, and that he sent a third party to the deceased to effect a compromise. Everett v. State, 30 Tex. App. 68 2. On the issue of self-defence the accused may show prior threats of the deceased known to him, the existence of a grudge, and prior assaults by the deceased on defendant. State v. Scott, 24 Kan. 68 ; Rippy v. State, 39 Tenn. 217. 237 ^' AMERICAN NOTES. Uncommunicated Threats of Deceased. Threats of the deceased that had not been communicated to the defendant are not admissible to show that he had a reason- able apprehension of danger, but they may be admissible to show the state of mind and intentions of the deceased. State v. Faile, 43 S. C. 52 ; State v. Gushing, 14 Wash. 527, 53 Am. St. Rep. 883 ; State v. Evans, 33 W. Va. 417 ; State v. Vaughan, 22 Nev. 285; State V. Fisher, 33 La. Ann. 1344; State v. Elliott, 45 Iowa, 486. Evidence of previous threats on the part of the deceased against the defendant is admissible to corroborate evidence indicating that the deceased was the assailant. Lester v. State, 37 Fla. 382 ; Monroe v. State, 5 Ga. 85 ; Prine v. State, 73 Miss. 838 ; State V. Harrod, 102 Mo. 590; Stokes v. People, 53 N. Y. 164. Such evidence is not admissible where there is no doubt that the de- fendant was the aggressor, or where he himself invited the fight. State V. Alexander, 66 Mo. 148 ; Mealer v. State, 32 Tex. Cr. R. 102; Robert v. State, 68 Ala. 515; Steele v. State, 2)2) Fl^- 348 ; State v. Wilson, 43 La. Ann. 840. Evidence of previous threats on the part of the deceased is not admissible when there is not evidence to show that he did any act indicating his intention to carry out the threats. Jenkins V. State, 80 Md. 72 ; State v. Kenyon, 18 R. L 217 ; People v. Campbell, 59 Cal. 243, 43 Am. Rep. 257; Harris v. State, 47 Miss. 318 ; Leigh v. People, 113 111. 372. Proof of former difficulties and ill-feeling between the deceased and the defendant cannot be admitted in evidence when there is absolutely no evidence to show that the defendant may have acted in self-defence. Rutledge v. State, 88 Ala. 85. Self-Defence — Character of Deceased. The character of the deceased in cases of homicide is some- times admitted. In Williams v. Fambro, 30 Ga. 233, the deceased was a slave, and the defendant claimed that he was killed while acting insub- ordinately. Evidence to show the previous insubordinate char- acter of the slave was admitted. State v. Spendlove, 44 Kan. r, holds that where there is doubt as to whether the defendant 01 AMERICAN NOTES. 237 Z the deceased was the aggressor, such character evidence is admissible. In Copeland v. State, 41 Fla, 320, character for " general cussed- ness" was excluded. See also, Com. v. Haskins (Ky.), 35 S. W. 284 ; Fields v. State, 47 Ala. 603 ; People v. Murray, 10 Cal. 309. The conduct of the deceased at the time of the homicide is to be construed with reference to his character as theretofore known, and hence such character is admissible. Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250. Defendant may show that deceased had just lost money to him at gambling and that at such times he was usually a danger- ous man. State v. Hunter (Iowa), 92 N. W. 872. The dangerous character of the deceased is immaterial where the defendant denies the killing altogether. Manning v. State, 79 Wis. 178. To show self-defence where the defendant is charged with assault with intent to kill, he may prove the dangerous character of the prosecuting witness. Upthegrove z'. State, 37 Ohio St. 662. The deceased may be shown to have been a dangerous and powerful man where the issue is self-defence. Brownell v. People, 38 Mich. 732 ; State v. Floyd, 51 N. C. 392. The character of the deceased may be admissible in evidence because certain acts and motions on the part of a man known to be dangerous justify a much greater apprehension of danger and much more sudden steps to prevent such danger, than the same acts on the part of other men. Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250 ; Perry ik State, 94 Ala. 25 ; State v. Keefe, 54 Kan. 197. Where the defendant, charged with homicide, has given evi- dence to show that he killed the deceased because there was reasonable ground to fear danger, he may prove the violent and dangerous character of the deceased. Nichols v. People, 23 Hun, 165 ; State v. Graham, 6r Iowa, 608 ; State v. Downs, 91 Mo. 19 ; Williams v. State, 74 Ala. 18 ; Marts v. State, 26 Ohio St. 162 ; Williams v. State, 14 Tex. App. 102, 46 Am. Rep. 237 ; Smith V. U. S., 161 U. S. 85. At least he may prove the dangerous character of the deceased where he knew of such dangerous character and the deceased did some overt act indicating his purpose to attack, Hudson v. 2377 AMERICAN NOTES. State, 6 Tex. App. 565, 32 Am. Rep. 593; State v. Nash, 45 La. .\nn. 1137; Smitii 7'. U. S., 161 U. S. 85 ; State v. Nett, 50 Wis. 524. Evidence of the turbulent character of the deceased may be admissible on the question of self-defence. Alexander v. Com., 105 Pa. I. Defendant may prove the character of the deceased as a dan- gerous man. Jenkins v. State, 80 Md. 72. After showing that the deceased was intoxicated when killed, the defendant may show that the deceased was dangerous when drunk. State v. Manns (\V. Va.), 37 S. E. 613. Where the accused claimed self-defence, he was not allowed to show that during a previous quarrel the deceased had armed him- self with an ice-pick, for the purpose of showing deceased to have been a dangerous character. State v. Mims, 36 Ore. 315. Where the defendant shot the deceased while the latter was attacking with his fists, it is not competent to show that the deceased was a trained boxer on the issue of self-defence. State V. Talmage, 107 Mo. 543. /deputation for Carrying Weapons. Where deceased spat in defendant's face and started to draw a pistol before defendant fired, it may be shown that deceased was reputed to use deadly weapons in fights. State v. Ellis, 30 Wash. 369. The defendant has a right to show that the man he killed was generally reputed to carry dangerous weapons, where the issue is self-defence. Glenewinkel v. State (Tex.), 61 S. W. 123. On the issue of self-defence the defendant may show that the deceased was in the habit of carrying weapons, and that he had knowledge of such habit. Wiley v. State, 99 Ala. 146; State v. Graham, 61 Iowa, 608; Riley v. Com., 94 Ky. 266; King v. State, 65 Miss. 576, 7 Am. St. R. 681. But if the defendant had no such knowledge before the homicide he cannot prove the fact. Garner v. State, 31 Fla. 170. Evidence Required before Character is Admissible. Evidence of the dangerous character of the deceased is not admissible to indicate the possibility that the defendant acted in AMERICAN NOTES. 2^:^"] k self-defence unless that possibility has already been indicated by other evidence. Eiland v. State, 52 Ala. 322 ; Jones v. People, 6 Colo. 452, 45 Am. Rep. 526 ; Gardner v. State, 90 Ga. 310, 35 Am. St. R. 202 ; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. i6z; Abbott z'. People, '^d N. Y. 460; Com. v. Straesser, 153 Pa. 451 ; Walker v. State, 28 Tex. App. 503; Carle v. People, 200 111. 494. Where there is no evidence that the deceased manifested any intention to attack the defendant, evidence of the deceased's dangerous character is not admissible. Cannon v. People, 141 111. 270; Lang V. State, 84 Ala. i, 5 Am. St. R. 324; Doyal v. State, 70 Ga. 134; State 7'. Vallery, 47 La. Ann. 182, 49 Am. St. R. 363 ; Irvin v. State, 43 Tex. 236 ; State v. Harris, 59 Mo. 550- The dangerous character of the deceased cannot be shown in defence where the deceaseei did nothing whatever to excite appre- hension on defendant's part. State v. Haab, 105 Pa. 230; State V. Morrison (W. Va.), 3S S. E. 4S1 ; Slate v. Madison (W. Va.), 38 S. E. 492 ; State v. Napoleon, 104 Pa. 164. If the trial judge believes the evidence in support of the claim of self-defence to be totally unworthy of belief, evidence of the dangerous character of the deceased should not be admitted. State V. Janvier, 37 La. Ann. 644. But if the evidence affords even slight ground for the inference of self-defence it is error to exclude the evidence of deceased's character. Garner v. State, 28 Fla. 113, 29 Am. St. R. 232. The defendant may not show the quarrelsome character of the deceased where the latter was killed with a rock while running away from the defendant. Jackson v. Com. (Va.), 36 S. E. 487. In State v. Rollins, 113 N. C. 722, it was held that the danger- ous character of the deceased may not be proved, even on the issue of self-defence, unless it be shown that the defendant knew of such dangerous character. " It is well and generally known that there are some violent and dangerous men in this country, who are in the habit of carrying pistols, belted behind them and in their pockets, who never think of fighting in any other way than with deadly weapons, who are expert in using them, and who, especially when intoxi- cated, bring on and press to the extreme of outrage their deadly 237^ AMERICAN NOTP:S. encounters for causes and provocations that would be regarded as utterly trivial by peaceable men ; and that if one of such ])er- sons, while engaged in an angry altercation, should suddenly step back and rapidly throw his hand behind him, it might readily be understood by those who saw it to mean that he was in the act of drawing a pistol to use it. The same act by one of the great mass of our peaceable citizens who are not in the habit of carry- ing weapons would suggest no such thought, and in such case the pistol would have to be drawn and exhibited before any such thing would be conceived, unless there had been some very extraordinary provocation. " This state of things here is a substantial reality, well known and ostensible to the perception of every one at all familiar with the subject ; and men act upon it, and are compelled to act upon it, in defending themselves from deadly assaults. ... It may be deduced from these authorities that the general character of the deceased for violence may be proved when it would serve to explain the actions of the deceased at the time of the killing ; that the actions which it would serve to explain must first be proved before it would be admissible as evidence ; that if no such acts were proved as it would serve to explain, its rejection when offered in evidence would not be error ; and that, if rejected when a proper predicate has been established for its admission, it is held to be error." Horbach v. State, 43 Tex. 250. Character of Third Parties. Where the defendant claims to have been attacked by deceased and a third party, he may prove the dangerous character of such third party. Tiffany v. Com., 121 Pa. 165, 6 Am. St. R. 775. Where during a fight between the defendant and a negro, a third party was killed, the defendant may show the tough charac- ter of the negro, and the State may rebut the testimony. Warren V. Com., 99 Mass. 370. Defence of Another. Defendant may prove that the deceased and third parties who were assaulting defendant's brother had previously made threats. People V. Curtis, 52 Mich. 616. AMERICAN NOTES. 237 m Where defendant claimed that the deceased was about to assault defendant's sister, previous threats of the deceased against the sister may be proved, even though they were not known by the defendant. State v. Felker, 27 Mont. 451. It may be shown too that defendant knew of other assaults made by the deceased upon the woman several months before. Ibid. Defendant cannot testify that his belief was that the deceased was about to attack defendant's son ; the material thing is the actual ground for such belief. State v. Downs, 91 Mo. 19. Where defendant claims that he was protecting his wife, the State may show that she kept a house of prostitution to show that deceased may have been there for a purpose not felonious. People V. Pierson, 2 Idaho, 71, 3 Pac. 688. Rebuttal of Self-Defence. It is competent for the State to show threats of the defendant to rebut his claim of self-defence. Bolzer v. People, 129 111. 112. The State may show all the circumstances of the altercation, threats made, relative size and strength of the parties. Palmore V. State, 29 Ark. 248. The State may show in rebuttal that there was no great dif- ference in size between the defendant and the deceased. Wilkins V. State, 98 Ala. i, 13 South. 312. Also that the accused is larger and stronger than the deceased. Hinch V. State, 25 Ga. 699. Where defendant had shown that all the appearances pointed to danger to himself from the deceased, the State was not allowed to show in rebuttal that the deceased was on a peaceful errand past defendant's house. Erumley v. State, 21 Tex. App. 222, 17 S. W. 140. To rebut the claim of self-defence the State cannot prove statements of the deceased that the trouble was over and that he did not want a gun, when such statements were not known by the defendant. They did not lessen the appearance of danger to him. May v. Com., 3 Ky. Law Rep. 474. The State may prove the peaceable character of the deceased to rebut defendant's claim of self-defence. Fields v. State, 134 Ind. 46. 237^' AMERICAN NOTES. Intoxication as a Defence. Intoxication admitted to prove incapacity to commit homicide. State V. Home, 9 Kan. 128. Excessive use of morphine and whiskey admitted to show general criminal irresponsibility. Franklin v. Franklin, 90 Tenn. 49. As negativing the existence of an intent, the defendant may show that he was drunk (Leroy v. State (Ala.), 25 So. 247), or he may sliow that he was ignorant of facts which made his act criminal. Farrell v. State, 32 Ohio St. 456. The defendant may prove his incapacity to commit the crime charged ; c. g. illness, paralysis, intoxication. " In such case the intoxication is not shown for the purpose of excuse or mitigation of the offence charged, but as evidence tending to show that he was not jKesent and did not commit the acts constituting the offence. Evidence of this kind would have but little weight against direct evidence showing the actual presence of the accused at the time and place when and where the crime was committed ; but certainly in the absence of any such direct evidence, the ac- cused may give in evidence any fact which would have a natural tendency to render it improbable that he was there and did the acts complained of; and the fact that drunkenness was the thing which tended to prove such improbability can make no differ- ence." Ingalls V. State, 48 Wis. 647. Experiments to Show Impossibility. Where it was shown that after the time of an offence the de- fendant caught up with and passed three wagons, he should be permitted to give evidence of experiments indicating that if de- fendant had committed the offence he could not have passed the wagons. Clark v. State (Tex,), 40 S. W. 992. Evidence that a Third Person Did the Act. It seems that the defendant may not show that another has previously been convicted of the same crime. State v. Smarr, 121 N. C. 669; Kazer v. State, 5 Ohio, 280 (conviction of an- other for the same arson). The confession of a third person that he committed the crime AMERICAN NOTES. 237 in question cannot be proved by the accused, for the reason that the law excludes it as hearsay. The defendant may give evidence indicating that the crime charged was committed by another, and may then show that such other person had a motive to commit the crime and what it was. Green v. State, 154 Ind. 655. In Com. V. Felch, 132 Mass. 22, the defendant, charged with an attempt at abortion causing death, was not allowed to prove that the deceased had told a witness that she was pregnant by one not the defendant, and that if that one did not procure an abortion she would do so herself. But see Com. v. Trefethen, 157 Mass. 180. The defendant may show that the crime was committed by an- other, even though that other has already been acquitted (People V. Mitchell, 100 Cal. 328), and the evidence offered is admissible even though it would not be sufficient to prove such other person's guilt beyond a reasonable doubt (Sidney v. Com., i Ky. Law Rep. 120) ; but the mere fact that another has been indicted for the crime is not admissible. Taylor v. Com., 90 Va. 109. Any evidence tending to show that another than the defend- ant committed the crime is competent. Synon v. People, 188 111. 609. Bastardy Cases. In bastardy cases the defendant may show intercourse by the woman with other men at about the time conception must have taken place. State v. Seevers, 108 Iowa, 738; Eddy v. Gray, 4 Allen, 435; State z'. Warren, 124 N. C. 807; Humphrey z/. State, 78 Wis. 571 ; Benham v. Richardson, 91 Ind. 82, Motives of Third Persons. That a third person had a motive to do the act of which the defendant is accused is sometimes admitted and sometimes not. It would, of course, have some v^^eight in the defendant's favor. Cases admitting such evidence : Crawford v. State, 12 Ga. 142 ; State V. Johnson, 30 La. Ann. 921 ; contra, Com. v. Abbott, 130 Mass. 475; Tatum v. State, 131 Ala. 32; Horn v. State (Wye), 73 Pac. 705. The defendant cannot prove that others had a motive to do the 237/ AMERICAN NOTES. act cliarged, unless he in other ways connects them with the act. Tatuni V. State (Ala.), 31 So. 369. The defendant may prove that another had a motive to commit the crime. Sawyers v. State, '&2> l^i'^'i- 694. Where there is no direct evitlence that the defendant struck the fatal blow, he may show that the deceased had had a quarrel with another about the time of the homicide. Crawford v. State, 12 Ga. 142 ; State v. Johnson, 30 La. Ann. 921. It is immaterial that others had motives to commit the crime, where it is shown that they had no opportunity. Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640. The defendant cannot show that others had a motive to commit the crime in question unless he further shows that they had the opportunity. Ogden v. State (Tex.), 58 S. W . 1018, Threats of Third Persons. Courts generally do not allow the accused to introduce evi- dence that third persons had threatened to do the act in ques- tion ; although it cannot be doubted that proof that a third person did the act in question excludes the conclusion that the accused did it ; and if threats by the accused tend to show that he did the act, then why should not threats of third persons tend to show that they did it? The reasons given for excluding such tes- timony are various. See State v. Beaudet, 53 Conn. 543 ; School- craft V. People, 117 111. 271; State v. Fletcher, 24 Ore. 295; State V. Crawford, 99 Mo. 74; Carlton v. People, 150 111. iSi. But see Alexander v. U. S., 138 U. S. 353, and Worth v. R. R. Co., 51 Fed. Rep. 171, where such evidence was admitted. The defendant cannot show that others had threatened to kill the deceased in the absence of any other evidence tending to connect such others with the homicide in question (Woolfolk v. State, 81 Ga. 551 ; State v. Mann, 83 Mo. 589 ; State v. Duncan, 28 N.C. 236 ; Henry v. State (Tex.), 30 S. W. 802) ; but in con- nection with such other evidence, threats by the third persons may be proved (Morgan v. Com., 77 Ky. 106) ; also where the evidence against the defendant is entirely circumstantial. Murphy V. State, 36 Tex. Cr. Rep. 24; Leonard v. Terr., 2 Wash. T. 381. In State v. Davis, 77 N. C. 483, the defendant was not allowed AMERICAN NOTES. 237 q to show that a third person went toward the home of the de- ceased, armed and threatening to kill the deceased. See also State V. Lambert, 93 N. C. 618. In Alexander v. U. S., 138 U. S. 353, the defendant, charged with homicide, was allowed to show that at the time the deceased disappeared a party of armed men were looking for him with threats to kill him for eloping with a married woman. Suicide. The defendant may give in evidence other possible hypotheses upon which the act charged may be explained. He may show that the deceased may himself have inflicted the wound causing death. State v. Lee, 65 Conn. 265. The absence of motive on the part of the defendant may be considered by the jury as supporting the claim that the deceased shot himself after wounding the defendant. Smith v. State (Neb.), 85 N. W. 49. Deceased'' s Intention to Commit Suicide. The defendant may show that the deceased had planned to commit suicide, for that would make it more or less probable that the deceased was not killed by the defendant. " It may be true that an unmarried woman pregnant with child, if she has an intention to commit suicide, does not always carry that intention into effect, although she have an opportunity ; but it is impossible to say that the actual existence of such an intention does not tend to throw some light upon the cause of death of such a woman when found dead under circumstances not inconsistent with the theory of suicide." Com. v. Trefethen, 157 Mass. 180; State v. Asbell, 57 Kan. 398. The defendant in homicide may prove a declaration of the deceased that it was his intention to commit suicide, where the circumstances are not inconsistent with that manner of death. Com. V. Trefethen, 157 Mass. 180, 24 L. R. A. 235 ; People v. Gehmele, i Sheld. (N. Y.) 251; Blackburn z/. State, 23 Ohio St. 146 ; Boyd v. State, 82 Tenn. 161. Cases where such evidence was not admitted. State v. Pun- shon, 124 Mo. 448, 133 Mo. 44; State z/, Fitzgerald, 130 Mo. 407. 237 A- AMERICAN NOTES. And melancholy statements by the deceased that he was sick of life are not admissible where there is no claim that he com- mitted suicide. State v. Foamier, 68 Vt. 262. Motives for Suicide. The defendant may show that the deceased had a motive for suicide, as that deceased was an unmarried woman and pregnant. Spencer Cowper's Trial, 13 How. St. Tr. 116O; Blackburn v. State, 23 Ohio St. 165. Complaint. " In criminal cases the conduct of the person against whom the offence is said to have been committed, and in {particular the fact that soon after the offence he made a complaint to persons to whom he would naturally complain, are deemed to be relevant. The terms of the complaint are irrelevant; except that in a case of rape or other sexual offence where the consent of the person against whom the offence was committed to the act charged as an offence is in issue, the terms of the complaint are relevant as showing that the conduct of such person was consistent with the denial of consent." Stephen's Dig. Evid., Art. 8. The American authorities generally state the rule that the fact of complaint is relevant as applying only to prosecutions for rape and other offences against women. American Law Review, vol. xiv, pp. 829-838; Haynes v. Com., 28 Gratt. (Va.) 942. In rape cases the fact of complaint may be shown. State v. Carroll, 67 Vt. 477; Com. v. Phillips, 162 Mass. 504 ; Stevens. V. People, 158 Ill.iii ; People v. Stewart, 97 Cal. 238 ; Cross v. State, 132 Ind. 65 ; Parker v. State, 67 Md. 329; Lee v. State, 74 Wis. 45 ; Johnson v. State, 17 Ohio, 593 ; Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366. A delay of weeks or months, if explained, does not render the fact of complaint inadmissible (State v. Wilkins, 66 Vt. i) ; nor does that of more than a year ; it simply affects the weight of the evidence. State v. Byrne, 47 Conn. 465, 466, 467. The conduct of a woman subsequent to the commission of an alleged abortion may be shown in a prosecution against one for performing the abortion. State v. Lee, 69 Conn. 196. AMERICAN NOTES. 237.? Evidence of constancy in accusation is admissible. State v. De Wolf, 8 Conn. 99. Terms of Complaint Irrelevant. The terms of the complaint are irrelevant. State v. Knapp, 45 N. H. 148, 155. But in prosecutions for offences against women the terms of the complaint are considered relevant. State v. Kinney, 44 Conn. 153, 26 Am. Rep. 436 ; Burt ?'. State, 23 Ohio St. 394; Hill V. State, 5 Lea (Tenn.), 725. See also Benton v. Starr, 58 Conn. 285. So where the complainant is a girl of tender years. Harmon v. State, 70 Wis. 448. "The count upon which Lillyman (R. v. Lillyman (1896), 2 Q. B. 167) was substantially tried, and upon which alone {ibid. at p. 170) he was convicted, charged that he unlawfully at- tempted to have carnal knowledge of a girl under sixteen and over thirteen. The question of her consent was therefore imma- terial (Criminal Law Amendment Act, 1S85, § 5, by which the offence was created). In giving her evidence, however, the girl asserted that she did not consent to the attempt. Sir Henry Hawkins admitted evidence of the terms of a complaint made by the girl to her mistress, in the absence of the prisoner, very shortly after the commission of the acts charged. The prisoner was convicted, and the case reserved on the question whether this evidence was admissible. The Court (Lord Russell, C. J., Pollock, B., Hawkins, Cave, and Wills, JJ.) affirmed the con- viction. The ground of the decision is clearly stated in two passages of the judgment of the Court, delivered by Sir Henry- Hawkins. ' It (the complaint) is clearly not admissible as evi- dence of the facts complained of. . . . The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by hei in the witness-box, and as being inconsistent with her consent to that of which she com- plains ' {ibid, at p. 170). * The evidence is admissible only upon the ground that it was a complaint of that which is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness-box negativing her consent, and affirming 2 37^ AMERICAN NOTES. that the acts romplained of were against her will, and in accord- ance with the conduct they would expect in a truthful woman under the circumstances detailed by her' {H>iii. at p. 177). In other words, tlic judgment decides that where a woman has made a statement as to her own consent, which in the case before the Court happened to be perfectly irrelevant, the details of her complaint may be admitted only because they may serve as a test of the credibility which ought to attach to the relevant parts of her testimony." Stephen's Dig. Evid., Appendix, Note V. Character of the Prosecutrix in Rape and Similar Offences. " When a man is prosecuted for rape or an attempt to ravish, it may be shown that the woman against whom the offence was committed was of a generally immoral character, although she is not cross-examined on the subject. The woman may in such a case be asked whether she has had connection with other men, but her answer cannot be contradicted. She may also be asked whether she has had connection on other occasions with the prisoner, and if she denies it she may be contradicted." Stephen's Dig. Evid., Art. 134. The character of the prosecutrix for chastity in rape cases is relevant on the issue of consent to the act and is admissible in evidence. This applies also to prosecutions for other similar offences. People v. Johnson, 106 Cal. 289; Seals z;. State, 114 Ga. 518; Shirwin v. People, 69 111. 56; Anderson v. State, 104 Ind. 471 ; Com. v. Harris, 131 Mass. 336 ; O'Blemis v. State, 47 N. J. L. 279 ; Gore v. Curtis, 81 Me. 403 (solicitation to commit adultery) ; Gross v. Brodrecht, 24 Oat. App. 687 (indecent assault) ; Com. v. McDonald, no Mass. 405 ; Bedgood v. State, 1 15 Ind. 275. It may be shown that the prosecutrix was a prostitute. Rice v. State, 35 Fla. 236; People v. McLean, 71 Mich. 310; Woods v. People, 55 N. Y. 515. In actions for seduction, and the like, the woman's bad char- acter as to chastity may be shown. Van Storch v. Griffin, 71 Pa. 240. In action for seduction the good reputation of the girl in one place may be proved to rebut evidence of her bad reputation in another place. Milliken v. Long, 188 Pa. 411. AMERICAN NOTES. 237 U Particular Acts of Unchastity. On this subject there is a contlict. The following cases hold that particular acts of unchastity with others cannot be proved. Gore V. Curtes, 81 Me. 403; Com. v. Harris, 131 Mass. 336; Com. V. Regan, 105 Mass. 593; People v. McLean, 71 Mich. 307 ; Shartzer v. State, 63 Md. 149 \ Rice v. State, 35 Fla. 236; Richie v. State, 58 Ind. 355 ; contra. State v. Hollenbeck, 67 Vt. 34; Hoffman v. Kemerer, 44 Pa. St. 453; Doyle v. Jessup, 29 111. 460; Smith V. Yaryan, 69 Ind. 445 ; People v. Benson, 6 Cal. 221 ; State v. Forstner, 43 N. H. 89 ; State v. Knapp, 45 N. H. 148; People v. Abbot, 19 Wend. 194; R. v. Martin, 6 C. & P. 562. When woman is under age of legal consent, such evidence in rape cases has been held incompetent. People v. Johnson, to6 Cal. 289; People v. Abbott, 97 Mich. 484; State v. Duffey, 128 Mo. 549. Explanations of Suspicions Circumstajices. Where it was shown that several sizes of shot were found in the body of the deceased and also in the defendant's gun, the defend- ant was allowed to prove that the use of such shot in that manner was common in the neighborhood. Cooper v- State, 23 Tex. 343. The defendant is allowed to give in evidence other hypotheses to explain incriminating circumstances. He may show a reason for carrying a gun (People v. Malaspina, 57 Cal. 628) ; or the reason for the possession of strychnine (People v. Cuff., 122 Cal. 589) ; or a reason for going to the locality of the crime. State v. English, 67 Mo. 136. In rebuttal of evidence of facts claimed to show motive or state of mind, the accused may show what led up to those facts. Rufer z;. State, 25 Ohio St. 464; Stater;. Spring, Tappan, 167. The defendant in Granger v. State (Tex.), 31 S. W. 671, was allowed to explain the fact that his gun had been recently fired, by saying that he had shot a hawk, which he produced. He was convicted, nevertheless. Where the defendant, charged with forgery of a check, testifies that he won it in a poker game, he may be asked, on cross- examination, whether he told that story to the officers when "he 21"] V AM KRICAN NOTES. was first accused of the crime, and it may be shown that he did not. People v. Dole, 122 Cal. 4S6, 68 Am. St. Rep. 50. The defenilant may show that the reason he was encased in steel armor and had four jiistols was that two organizations of which deceased was a member had thrcatenetl defendant's life. People V. Lee Chuck, 74 Cal. 30. Where the State has given evidence that the defendant bought a gun to kill the deceased, he may show that he had been threat- ened and hence bought it to defend himself. State v. Doherty, 72 Vt. 381. The defendant may show that in buying a gun he was prepar- ing, not to make an attack, but to resist one. State v. Claire, 41 La. Ann. 191 ; Long v. State, 52 Miss. 23. In a murder case, it is error not to allow the defendant to ex- plain how he happened to have a pistol with him. Aaron v. State, 31 Ga. 167. The defendant charged with a homicide and shown to have had blood stains on his face and shirt, may prove that the day before the homicide occurred he asked a witness for his handkerchief because he had the nosebleed. Murphy v. State, 36 Tex. Cr. Rep. 24, 35 S. W. 174. Where one accused of arson had previously removed his own goods from the house, it is error to exclude his explanation for such removal. People v. Fournier (Cal.), 47 Pac. 1014. Evading Arrest Explained. The defendant may explain his evasion of arrest consistently with his innocence. Li France v. State, 68 Ark. 529, 533, it is said : "Now, the evidence in this case shows, we think, that this defendant and those charged with him did not intend permanently to avoid arrest. They stated that they endeavored to avoid arrest at the time, for the reason that they could not give a bond, and did not wish to lie in jail until they could have a trial, but in- tended to surrender soon. The fact that they continued to remain in the neighborhood of their homes until arrested, although they could easily have left the State, seems to support this statement. Although this endeavor to avoid arrest was a circumstance against defendant calculated to arouse a suspicion that he was guilty, yet, taken in connection with the explanation given for it, we AMERICAN NOTES. 237 zc; think it hardly sufficient to justify the conviction, when standing alone without other circumstance to connect defendant with the crime." Flight Explained. In Tilley v. Com., 90 Va. 99, the defendant showed that he fled the day after the murder because there was great excitement at the inquest and he was in great danger of being lynched, that after his arrest he was furnished with instruments with which to escape, and that he turned them over to his attorney. The accused may offer explanations of his flight or concealment to rebut any inference therefrom that he is guilty. In Kennedy V. Com., 14 Bush, 346, the accused gave the weak explanation that he fled because the jail was filthy ; in Batten v. State, 80 Ind. 394, it was fear of violence. The defendant may rebut the inference of guilt from his flight by proving that he fled from fear of summary vengeance by the father of the deceased. But a witness cannot testify that " the defendant seemed afraid " of the said father, Lewis v. State, 96 Ala. 6, 10, And he may explain his disappearance from the inquest to which he was summoned. In Bailey v. State, 104 Ga. 530, the Court says : " Doubtless he saw that he was suspected at the in- quest, and seeing the relatives of the deceased armed, in a moment of such excitement it is not strange, and is entirely con- sistent with the theory of his innocence, that he should have en- deavored to escape from such an atmosphere of danger." Explanatlofis of Possession of Another's Property. Defendant may explain the possession of money belonging to another by evidence that he found it. White v. State, 28 Tex. App. 71. The defendant, in possession of animals belonging to another, may explain by evidence that he took the property under the belief that it was his. Evidence that a brand on the animal looked like the brand of the defendant would be a corroborative circumstance. So it may be shown that herds became mixed by accident, or that bales belonging to defendant had been placed near similar bales belonging to others, or that two animals looked alike. Randlez;. State, 49 Ala. 14 (bales of cotton) ; Thurman v. 21"] X AMERICAN NOTES. State, 33 Tex. 684 (hog) ; Misscldine v. State, 21 Tex. App. 335 (strong resemblance between pigs) ; Minis v. State (Tex.), 32 S. W. 540 (cow mixed with a herd) ; liroolis v. State (Tex.), 27 S. W. 141 (brand W. B. looked like W. K.). Where the defendant was charged with larceny of a steer, and fresh meat was found in his possession, he may show that this meat came from another steer of his own. But even so, tiie jury need not be instructed to acquit, if they find such evidence of the defendant to be true. State v. Minor (Iowa), 77 N. \V. 330. Defendant, charged with the larceny of animals that he had driven off and sold, may show that at once upon discovering the fact he had sought the owner and offered or paid liim the value of the animals (Hall v. State, 34 Ga. 20S) ; or that he returned the property itself. Bennett v. State, 28 Tex. App. 342 ; Hicks V. State (Tex.), 47 S. W. 1016. One charged with larceny may prove that he himself put the offi- cers on the track of the stolen goods. Pinkard v. State, 30 Ga. 757. Defendant, accused of taking a package of tobacco, and hav- ing been seen in possession of such a package, may explain where he got it. State v. Brundidge, 118 Iowa, 92. A defendant charged with the larceny of property may show that he purchased it. The truth of his evidence is for the jury. Smith V. State, 24 Tex. App. 290. The reasonableness of the defendant's explanation is for the jury. State v. Mandich (Nev.), 54 Pac. 516. In explaining the possession of recently stolen goods, the de- fendant may prove what the person from whom he got them said at the time. State v. Jordan, 69 Iowa, 506 ; Guajardo v. State, 24 Tex. Grim. 603. The presumption of guilt arising from the possession of re- cently stolen goods is wholly rebutted by showing that such pos- session was obtained since the date of the stealing. State v. Humason, 5 Wash. 499 ; Heed v. State, 25 Wis. 421. If the prosecution relies on the fact of possession to prove lar- ceny, the accused may offer in evidence any explanation given by him at the time when he was first found with the property in his possession. Goens v. State (Tex.), 31 S. W. 656. And the jury should give such explanation as much weight as they deem it entitled to in view of its inherent probability, and the failure of the State to disapprove it where the means of doing so lie within its power. Payne v. State, 57 Miss. 348. AMERICAN NOTES. 237^' Explaining away Threats. When it has been shown that the defendant had had an inten- tion to commit a crime or had tlireatened to do so, he may show the length of time since elapsed justifying an inference that the intention had been abandoned and the circumstances under which the threats were made. Atkins v. State, 16 Ark. 581. To explain threats that he had made against the deceased, the accused may prove that prior thereto the deceased hatl attacked him with a hatchet. Boljer v. People, 129 111. 112. The defendant may show that threats made by him were brag- gadocio only, as by showing his threat to whip several men at once. People v. Curtis, 52 Mich. 616. Identity. To rebut evidence of identity the accused may show that another or others very closely resemble him. White v. Com., 80 Ky. 483. This sort of evidence was rejected when offered by the State in Com. v. Webster, 5 Cush. 295. In Grant v. State (Tex.), 58 S. W. 1025, the defendant es- caped punishment, where his conviction rested upon tracking him, by showing that others thereabouts had a wagon, a horse, and a mule, and wore shoes similar to his. Absence of Motive. " The absence of evidence suggesting motive for the commis- sion of the crime charged is a circumstance in favor of the ac- cused, to be given such weight as the jury deems proper; but proof of motive is never indispensable to conviction." Pointer v. U. S., 151 U. S. 396. And see note to Chapter III. Absence of motive to do the act charged may be proved by the defendant, but it does not entitle him to an acquittal ; it is merely a fact to be weighed by the jury. Salm v. State, 89 Ala. 56. In Pogue V. State, 12 Tex. App. 283, the defendant, charged with homicide, showed that he and the deceased were friends and he had no motive to kill ; that his peculiar conduct after- wards might fully be accounted for by the fact that he was drunk ; that the defendant's clothes bore no blood stains, although the 237 - AMERICAN NOTES. killing was witii a knife and ihcrc wcif several wounds ; that the defenilant did not leave the neighborhootl, but appeared surprised when told of the deceased's death, and attemied the incjuest. Although there were many circumstances indicating tlie defenil- ant's guilt, it was held that they were not wholly inconsistent with his innocence. Innocent Motive. Where the defendant, a saloon keeper, was charged with in- juring a canal for the purpose of selling beer to the repairing gang, and he is shown to have bought fifteen barrels of beer before the offence was committed, he may show that he bought an unusual amount of beer at that time to avoid payment of a revenue tax about to be imposed. People v. Manahan, 70 N. Y. Supp. loS. Rebuttal of Motive. Where robbery is the alleged motive for a homicide, the de- fendant may show that the deceased was not reputed to have money and actually had none. Lancaster v. State (Tex.), 31 S. W. 515. Where the motive for a murder may have been robbery, certain money in deceased's possession being gone, the defendant proved that he had no need of money, and had ^300 at the time, the amount possessed by the deceased being $30. Tilley v. Com., 90 Va. 99. A defendant charged with robbery may not prove that he was already possessed of property to negative the existence of a motive. Reynolds z'. State (Ind.), 46 N. E. 31. Defendant charged with wife murder may rebut evidence that his relations with his wife were unfriendly by proof of affectionate letters from her. Pettit v. State, 135 Ind. 393; State v. Leabo, 84 Mo. 168, 54 Am. Rep. 91. The defendant cannot prove the fact that the deceased and he were on friendly terms a year before the homicide. Com. v. Twitchell (Pa.), i Brevvst. 551. The defendant may not prove specific acts of kindness to the person claimed to have been killed by him, where the State has introduced no evidence of unkindness. Murphy v. People, 9 Colo. 435. AMERICAN NOTES. 237 a* Voluntary Surrender. In America the courts have very generally excluded evidence on the part of the accused that he surrendered himself openly and voluntarily. State v. Musick, loi Mo. 260; State v. McLaughlin, 149 Mo. 19; Vaughn v. State, 130 Ala. 18; Oliver V. State, 17 Ala. 587/ contra, Boston v- State, 94 Ga. 590; White V. State, iii Ala. 92. In Vaughn v. State, 130 Ala. 18, the defendant was not allowed to prove that he refused to-flee and surrendered voluntarily, since there was no evidence on the part of the State that he attempted to get away. "The district attorney objected to the question, and appel- lant's counsel stated to the Court that he desired to show that appellant, immediately after the shooting, went to Paso Robles for the purpose of surrendering himself to the officers, but acting Upon the advice of a Mr. Korn he returned home and waited for the officers to come after him. The Court sustained the objec- tion. This question might well have been allowed j and in many cases the refusal to allow such questions would be material error. But in the case at bar there was no evidence or pretence that appellant attempted flight, therefore he could not have been prejudiced by the rejection of the testimony." People v. Shaw, III Cal. 171, 176. That the accused voluntarily appeared to answer the charge may be shown. State v. Gardner, Tappan (Ohio), 124. Refusal to Escape. It has many times been held in the United States that the de- fendant cannot prove that he refused to escape when he had an opportunity to do so. People v. Rathburn, 21 Wend. 509 ; Com. V. Hersey, 2 Allen, 173; People v. Montgomery, 53 Cal. 576; Jordan v. State, 81 Ala. 20 ; Kennedy v. State, loi Ga. 559. Such evidence was admitted in Lewis v. State, 4 Kan. 309. Conduct In die at mg Consciousness of Innocence. Courts very generally refuse to allow proof of defendant's con- duct to show his consciousness of innocence, though it would seem to be equally relevant with conduct to show consciousness 237 b* AMERICAN NOTES. of guilt. Campbell v. State, 23 Ala. 44 ; State v. Strong, 153 Mo. 54S. To show innocence one cannot show that on other occasions he had opportunities to violate the law but did not do so. Arclier 7'. State, 45 Md. 33. In Pinkard v. State, 30 Ga. 759, the defendant was allowed to show he put the ofificers on the track of the real criminal. Previous Bad Character. The previous bad character of the accused is certainly evidence relevant to show the probability of his having committed a crime. It could well be termed an "inculpatory moral indication, but it is not admitted," for reasons of policy and humanity. The State may attack the character of an accused only when he introduces evidence that it is good, and even then the State may not prove any specific fa>cts, but is restricted to evidence as to general reputation. Bullock v. State, 65 N. J. L. 557. But evidence of the defendant's bad character may be given when the defendant has offered evidence of his good character. This is admitted probably not so much for the purpose of prov- ing the defendant's guilt, as to impose a necessary check upon his introducing false evidence of good character. Reg. v. Row- ton, Leigh & C, 520; Com. v. Hardy, 2 Mass. 317; U. S. z'. Holmes, 15 Fed. 382. The previous bad character of the accused, though equally relevant with his previous good character, is not admissible against him. The reason is given in Regina v. Rowton, Leigh & C. 520, as follows : . . . "if the prosecution were allowed to go into such evidence, we should have the whole life of the prisoner ripped up, and, as has been witnessed elsewhere, upon a trial for murder you might begin by showing that when a boy at school the prisoner had robbed an orchard, and so on through the whole of his life ; and the result would be that the man on his trial might be overwhelmed with prejudice, instead of being convicted by that affirmative evidence which the law of this country requires. The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice to the other ninety-nine." AMERICAN NOTES. 237 ^r* See also State v. Lapage, 57 N. H. 289; People v. Shay, 147 N. Y. 78; State v. Kabrich, 39 Iowa, 277; Com. v. Webster, 5 Cush. 295 ; State v. Beaty, 62 Kan. 266. Weight of Character as Evidence. The Court should not charge that evidence of good character is entitled to less weight in serious than in minor crimes, Har- rington V. State, 19 Ohio St. 264. Proof of good character may be sufficient to rebut wholly any presumption of guilt where the defendant has been found in pos- session of stolen goods, particularly where his possession can be accounted for in a way consistent with innocence, as where a purse stolen in a crowd is found in a reputable man's coat-pocket. Ingalls V. State, 48 Wis. 647 ; State v. Castra, 93 Mo. 242 ; Hughes V. State, 8 Humph. (Tenn.) 75. " Against facts strongly proved good character cannot avail. It is therefore in smaller offences in such as relate to the actions of daily and common life, as when one is charged with pilfering and stealing that evidence of a high character for honesty will satisfy a jury that the accused is not likely to yield to so slight a temptation. In such case, where the evidence is doubtful, proof of character may be given with good effect. " But still, even with regard to the higher crimes, testimony of good character, though of less avail, is competent evidence to the jury and a species of evidence which the accused has a right to offer. But it behooves one charged with an atrocious crime like this of murder to prove a high character, and, by strong evidence, to make it counterbalance a strong amount of proof on the part of the prosecution. It is the privilege of the accused to put his character in issue or not. If he does and offers evidence of good character, then the prosecution may give evidence to rebut and counteract it. But it is not competent for the government to give in proof the bad character of the defendant, unless he first opens that line of inquiry by evidence of good character." Com. V. Webster, 5 Cush. 295, 325. Alibi as Evidence. Of the nature of an alibi Chief Justice Shaw in Com. v. Webster, 5 Cush. 295, 318, says : *• When a fact has occurred, with a series 2iy d* AMERICAN NOTES. of circumstances preceding, accompanying, and following it, we know that these must all have been once consistent with each other; otherwise the fact would not have been possible. There- fore, if any one fact necessary to the conclusion is wholly incon- sistent with the hypothesis of the guilt of the accused, it breaks the chain of circumstantial evidence, upon which the inference depends; and, however plausible or apparently conclusive the other circumstances may be, the charge must fail. Of this character is the defence usually called an a/il>i ; that is, that the accused was ehmvhere at the lime the offence is alleged to have been committed. If this is true, — it being impossible that the accused should be in two places at the same time, — it is a fact inconsistent with that sought to be proved, and excludes its possibility." Somewhat similar to the defence of alibi is the defence in homicide cases that the supposed deceased is still alive or that he was alive since the time this defendant is accused of killing him. See Com. v. Webster, 5 Cush. 295, where the defendant tried to show that the deceased. Dr. Parkman, was seen about Boston at a time later than the time of the alleged murder. Alibi — Weight of Evidence. A verdict will not be set aside merely because the witnesses testifying to an alibi are unimpeached where the defendant was clearly identified as guilty of the crime charged. State V. White (Iowa), 68 N. W. 564; State v. Stanley, 109 Iowa, 142. An alibi is of no value as a defence unless it covers all the time within which the crime may have been committed. Brice- land V. Com., 74 Pa. 463. But it is sufficient if the defendant is shown to have been at a distant place during even a small portion of the time in ques- tion, wliere it would have been impossible for him to have reached the scene of the crime in the remainder of the time during which he was not accounted for. Waters v. People, 172 111 367 ; Henry v. State (Neb.), 70 N. W. 924 ; Miller v. Terr., 3 Wash. T. 554, 19 P^c. 50. An alibi is not established by proof that the defendant one hour after a certain offence w^s in another town fifteen miles away AMERICAN NOTES. 237 e* and connected by rail with the place of the crime. Donaho v. State (Tex.), 47 S. W. 469. Where the testimony against the defendant consisted wholly of the evidence of three accomplices already convicted, who were discredited by previous inconsistent statements and by proof that they were implicating the defendant in hope of a pardon for themselves, it was held that a conviction should not be sustained in the face of the testimony of three relatives and three others that the defendant was in their company during three hours of the time the witnesses claimed he was with them, and the testi- mony of a half brother, that the defendant slept with him during the same night. Waters v. People, 172 111. 367. In Miller v. Terr., 3 Wash. T. 554, 19 Pac. 50, two persons were killed and robbed and their bodies sunk in a lake. The defendant had a slight motive to do away with one of them, he had a gun with which the wounds might have been given, and a boat like his had been seen going from the place of the crime toward his home. He behaved afterwards in a manner indicating consciousness of guilt. But it was shown that the gunshots had been heard about 7 a.m., that the defendant had not left home until 8 A.M., that he had arrived in Seattle at 10 a.m., and that had he been on the scene of the crime he could not have reached Seattle before i p.m. None of the stolen property was traced to the defendant. A conviction was set aside. The defendant charged with arson in the nighttime may show that he was in his home and could not have left it without arous- ing the other inmates. State v. Delaney, 92 Iowa, 467. Where the defendant alleges he was in a certain house at the time of the crime charged, he may show in outline the conversa- tions at that time between him and the other individuals there. State V. Bedard, 65 Vt. 278. Alibi — Sufficient if Creating a Reasonable Doubt. It is generally held sufficient for the evidence of an alibi to raise a reasonable doubt as to the defendant's guilt ; he need not establish it by a preponderance of the evidence. Blankenship v. State, 55 Ark. 244; Beck v. State (Neb.), 70 N. W. 498; Pickens V. State (Ala.), 22 So. 551. If the evidence of an alibi taken in connection with the other 211 f* AMERICAN NOTES. testimony creates a reasonable doubt of guilt, the defendant should be acquitted. Sheehan v. People, 131 111. 22 ; Harrison v. State, 83 Ga. 129; Pate v. State, 94 Ala. 14; State v. Jaynes, 78 N. C. 504. Where the defendant relies upon an alibi alone, it must be established by a preponderance of the evidence, as against the evidence that he was near the scene of the crime ; but evidence of an alibi not amounting to a preponderance may be taken in connection with other testimony to establish a reasonable doubt as to defendant's guilt. Lucas v. State, no Ga. 756. Alibi — Rebuttal. The accused testified that he was in a certain city at the time of the crime and saw there a procession. His description of that procession may be shown to be inaccurate. People v. Gibson, 58 Mich. 368. Where a defendant claimed to have attended a certain circus at the time of the crime, and returned on a certain train, a neighbor was allowed to testify that he did not see the de- fendant either at the circus or on the train. State v. Phair, 48 Vt. 366. In People v. Durrant, 116 Cal. 179, where the defendant was charged with the murder of a young lady in a church at 3 P.M., he alleged at once, and firmly adhered to his statement, that he attended at that hour a lecture at the Medical College where he was a student, and in corroboration of his statement he produced what purported to be his original notes of the lecture taken at the time. But the State showed that he had pro- cured these very notes from a fellow student and friend after his arrest. The State may rebut evidence in an alibi, even though it did not in chief introduce any testimony directly contradictory to such subsequently proved alibi. State v. Maher, 74 Iowa, 77. Where the defendant was many miles away from the scene of the crime when arrested, and could not have reached the spot since the crime by the roundabout roads, it may be shown that the intervening fences were of wire and the defendant had a wire cutter. Goldsby v. U. S., 160 U. S. 70. AMERICAN NOTES. 237 Truth. The accused, in order to meet evidence that he gave a false account of himself, cannot show that on other occasions he gave a true account. Com. v. Goodwin, 14 Gray (Mass.), 55. Fabrication by Others. Where the only evidence against the defendant was given by a witness who before the trial told various parties that he knew nothing whatever against the defendant, a conviction was set aside. Adams v. State, 10 Tex. App. 677. Character of the Defefidant. " In criminal proceedings, the fact that the person accused has a good character is deemed to be relevant ; but the fact that he has a bad character is deemed to be irrelevant, unless it is itself a fact in issue, or unless evidence has been given that he has a good character, in which case evidence that he has a bad charac- ter is admissible." Stephen's Dig. Evid., Art. 56. Evidence of good character. — Com. v. Gazzolo, 123 Mass. 220; Edgington v. U.S., 164 U. S. 361 3 Com. v. Cleary, 135 Pa. St. 64; Jackson v. State, 81 Wis. 127; People v. Harrison, 93 Mich. 594; State v. Howell, 100 Mo. 628 ; State ?'. Rodman, 62 Iowa, 456. Evidence of bad character. — State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; State v. Ellwood, 17 R. I. 763, 24 Atl. 782; State v. Hull, 18 R. I. 207, 26 Atl. 191, 20 L. R. A. 609 ; People V. Fair, 43 Cal. 137 ; Com. z/. Sacket, 22 Pick. (Mass.) 394 ; Com. V. Hardy, 2 Mass. 303, 317; Com. v. O'Brien, 119 Mass. 345. That a defendant's character is relevant and actually tends to show the probability of the act of which he is accused cannot be doubted. R. v. Stannard, 7 C. & P. 674; R. v. Rowton, Leigh &: C. 520; Cancemi v. People, 16 N. Y. 506; State v. Lee, 22 Minn. 409. Evidence of the good character of the defendant is admissible in his favor in all criminal prosecutions. People v. Stewart, 28 Cal. 395 ; People v. VanDam, 107 Mich. 425 ; State v. Northrup, 48 Iowa, 584 ; Com. v. Webster, 5 Cush. 295 ; State v. Hice, 117 N. C. 782. 21"] h* AMERICAN NOTES. The character must he as to points which would tend to show that it was unlikely that the defendant committed the crime in question. Com. v. Nagle, 157 Mass. 554; Griffin v. State, 14 Ohio St. 55. The character which may be proved is not the character in general of the accused, but those specific traits of his character that would have a bearing upon the commission of the particular crime. Morgan v. State, 88 Ala. 224 ; Kee v. State, 28 Ark. 155 ; People v. Fair, 43 Cal. 137 ; People v. Chrisman, 135 Cal. 282 ; State v. Bloom, 68 Ind. 54. Defendant's reputation as a good soldier is not relevant in a prosecution for murder. People v. Garbutt, 17 Mich. 9. One accused of murder may prove his reputation for peace and quietude. House v. State (Tex.), 57 S. W. 825. In a prosecution for having carnal knowledge of a woman under the age of consent, the defendant may \)\ovq his "reputa- tion for morality, virtue, and honesty in living." State v. Snover, 63 N. J. L. 383. In bastardy proceeding the accused may prove his previous good character for morality. Hawkins v. State, i Zab. 630 ; Dally V. Woodbridge, i Zab. 491. In a prosecution for adultery, evidence of the good character for chastity of the woman with whom the adultery was alleged to have been committed is admissible. Com. v. Gray, 1 29 Mass. 474- General Reputation, ?wt Particular Acts. Testimony as to the defendant's good character must be con- fined to general reputation and cannot include specific acts. State V. Lapage, 57 N. H. 245, 24 Am. Rep. 69 ; Com. v. O'Brien, 119 Mass. 342, 345, 20 Am. Rep. 325; Com. v. Harris, 131 Mass. 336. Compare Com. v. Robinson, Thacher Cr. Cas. 230 ; Snyder v. Com., 85 Pa. St. 519; McQueen v. State, 108 Ala. 54 ; Berneker v. State, 40 Neb. 810 ; Betts v. Lockwood, 8 Conn. 488, 489; State V. Ferguson, 71 Conn. 227. Reputation., 7iot Disposition. " Assuming, then, that evidence was receivable to rebut the evidence of good character, the second question is. Was the an- swer which was given in this case, in reply to a perfectly legiti- AMERICAN NOTES. 237 Z * mate question, such an answer as could properly be left to the jury? {Q. 'What is the defendant's general character for decency and morality of conduct?' Ans. 'I know nothing of the neighborhootl's opinion, because I was only a boy at school when I knew him ; but my own opinion, and the opinion of my brothers who were also pupils of his, is that his character is that of a man capable of the grossest indecency and the most flagrant immorality.' The defendant was charged with indecent assault upon a boy.) Now, in determining this point, it is necessary to consider what is the meaning of character. Does it mean evi- dence of general reputation or evidence of disposition ? I am of opinion that it means evidence of general reputation. What you want to get at is the tendency and disposition of the man's mind towards committing or abstaining from committing the class of crime with which he stands charged ; but no one has ever heard the question, What is the tendency and disposition of the prisoner's mind? put directly." R. v. Rowton, i L. & C. 520. See criticism of this case below. " The subject character is considered at length in R. v. Rowton, 1865, I L. & C. 520. One consequence of the view of the sub- ject taken in that case is that a witness may with perfect truth swear that a man, who to his knowledge has been a receiver of stolen goods for years, has an excellent character for honesty, if he has had the good luck to conceal his crimes from his neigh- bors. It is the essence of successful hypocrisy to combine a good reputation with a bad disposition, and according to R. v. Rowton, the reputation is the important matter. The case is seldom if ever acted on in practice. The question always put to a witness to character is, What is the prisoner's character for honesty, morality, or humanity? as the case may be; nor is the witness ever warned that he is to confine his evidence to the pris- oner's reputation. It would be no easy matter to make the com- mon run of witnesses understand the distinction." Stephen's Dig. Evid., Appendix, note xxv. Although it has often been said that the term " Character " in- cludes both one's real disposition and his reputation for having such disposition (see Powers v. Leach, 26 Vt. 278), yet in so far as it is to be used as an evidentiary fact to establish the doing or the not doing of an act, it means the real disposition only. Rep- utation is only a fact from which one's real character is to be 2377* AMERICAN NOTES. inferred, and from his real character is to be inferred the proba- bihty of his having acted in a certain manner. The rule that one's character must be established by proof of his reputation merely is based upon the idea, not that they are the same thing, but that this mode of proof is less objectionable than that which depends upon the inilividual opinion of witnesses. Bottoms 7'. Kent, 3 Jones L. 160; State v. Lee, 22 Minn. 409. CHAPTER VI. RULES OF INDUCTION SPECIALLY APPLICABLK TO CIRCUMSTANTIAL EVIDENCE. All reasoning- concerning human conduct is essentially a process of induction, of which it is the object, by means of i^cneralizations founded upon a knowledge of the faculties, emotions, and laws of the mind, to discover the moral qualities and causal origin of the voluntary actions of our fellow-men ; whence it follows that the rules for the conduct of inductive in- quiry belong formally to the province of Logic, or the science of the laws of thought. The rules of evidence are therefore a selection of maxims tacitly assumed and acted upon by all men in the ordinary affairs of life, and recognized by philosophical wisdom and judicial experience as the best means of discovering truth. The purpose of this essay requires the enumeration only of such few leading rules of evidence as are of special, though not of exclusive application, to the particular subject-matter of this treatise. Rule i. — The facts alleged as the basis of any leo^al inference must be clearly proved, and beyond reasonable doubt connected with the factnni prcbandum. This rule is an indispensable condition of all sound induction ; and its object is, by proper rejections and exclusions, and after as many negations as are necessary (^), to verify facts and clear them from all {a) Bacon, Novum Organum, Lib. i., Aph. cv. ; Mill's Logic, Book V., chs. 2 and 3. RULES OF EVIDENCE. 239 ambig-uity, so that they may become the premises of logical argument and reasoning'. In moral investigations the facts are generally more obscurely developed than when physical phenomena form the subjects of inquiry ; and they are frequently blended with foreign and Irrelevant circumstances, so that the establishment of their connection with xho. factzcm probanduni becomes matter of considerable difficulty. No weight therefore must be attached to circum- stances which, however they may excite conjecture, do not warrant belief. Occurrences may be mysterious and justify even vehement suspicion, and yet the supposed connection between ehem may be but imaginary, and their co-existence Indicative of accidental concurrence merely, and not of mutual correlation. ** Where there is nothing but the evidence of circumstances to guide you," said Mr. justice Bailey, "those circumstances ought to be closely and necessarily connected, and to be made as clear as If there were absolute and positive proof" {h). Every circumstance therefore which is not clearly shown to be really connected as its correlative with the hypothesis it is supposed to support, must be rejected from the judicial balance ; in other words, It must be distinctly established that there exists between the. facluju proda7idnin and the facts which are adduced in proof of it, a real connection, either evident and necessary, or so highly probable as to admit of no other reasonable explanation {c). {b) Rexw. Downing, Salop Summer Ass. 1822, the next case infra. Epithets require to be watched: "absolute or positive proof" can mean only proof such as reasonably induces the conviction of certainty. See p. 262, inff-a. {c) Traite de la Preuve, par Alittermaier, ch. 55 and 57, 240 RULES OF EVIDENCE. The followincr cases will serve to manifest the dangerous consequences which may ensue from the disregard of this most salutary cautionary rule. Two brothers-in-law, Joseph Downing and Samuel Whitehouse, met by appointment to shoot, and afterwards to look at an estate, which on the death of Whitehouse's wife without issue would devolve on Downing. They arrived at the place of meeting on horseback, Dov/ning carrying a gun-barrel and leading a colt. After the business of the day, and after drinking together some hours, they set out to return home, Downing leading his colt as in the morning. Their way led through a gate opening from the turnpike road, and thence by a narrow track through a wood. On arriving at the gate, Downincj discovered that he had iorootten his ). " In drawing an inference or conclusion, from facts proved." said Lord Chief Justice Abbott (^), " regard must always be had to the nature of the particular case, and the facility that appears to be afforded either of explanation or of contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reason- able and just conclusion against him, in the absence of explanation or contradiction ; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradic- tion, can human reason do otherwise than adopt the conclusion to which the proof tends ? The (). The remains of a man which had lain undiscovered upwards of twenty-three years were identified by his widow from peculiarities in the teeth and skull, and from a carpenter's rule found with them (k). The identification of human remains has been facili- tated by the preservation of the head and other parts in spirits [i) ; by the antiputrescent action of the substances used to destroy life ; by the similarity of the undigested remains of food found in the stomach, with the food which it has been known that the party has eaten [k) ; by means of clothingf or other articles of the deceased traced to the possession of the prisoner, and unexplained by any evidence that he became innocently possessed {g) Rexv. Cook, Leicester Summer Assizes, 1834. ; and see Reg. v. Good, C. C. C. Sess. Pap., May 1842. {h) Rex V. Clewes, Worcester Spring Assizes, 1830, coram Little- dale, J, (?■) Rex V. Hayes and others, Paris and Fonblanque's Medical Jurisprudence, vol. iii. p. 73. {k) Rex V. MacDougal, Burnett's Criminal Law of Scotland, p. 54a IN CASES OF HOMICIDE. 29 1 of them (/) ; by means of artificial teeth (jn), and by numerous other mechanical coincidences. (3) In the proof of criminal homicide the true cause of death must be clearly established ; and the possibility of accounting for the event by self- inHicted violence, accident or natural cause, excluded ; and only when it has been proved that no other hypothesis will explain all the conditions of the case can it be safely and justly concluded that it has been caused by intentional injury. But, in accord- ance with the principles which govern the proof of every other element of the corpus delicti, it is not necessary that the cause of death should be verified by direct and positive evidence ; it is sufficient if it be proved by circumstantial evidence, which pro- duces a moral conviction in the minds of the jury, equivalent to that which is the result of positive and direct evidence {11). Suicide, accident, and natural causes are frequently suggested and plausibly urged, as the causes of death, where the allegation cannot receive direct con- tradiction, and where the truth can be ascertained only by a comparison of all the attendant circum- stances ; some of which, if the defence be false, are commonly found to be irreconcilable with the cause alleged. (/) Rex V. Ross, p. 285, supra ; Reg. v. Good, C. C. C. Sess. Pap., May 1842. {in) Reg. V. Manning and wife, p. 265, sttpra ; and Professof Webster's case, p. 109, supra. (n) See the language of Lord Meadowbank in Reg. v. Humphrey s^ Swintons Report, 315 ; see pp. 198-201, supra. U 2 292 PROOF OF THE CORPUS DELICTI A m;in named Corder was charg-ed with the murder of a yoLiiiL;" woman whom he had seduced and who had borne him a child. He took her from her father's house under the pretence of conveying her to I])swich to be married. Believing that, as he had told her, the parish officers meant to appre- hend her, she left her house on the iSth of May in disguise, a bag containing her own clothes having been taken by the prisoner to a barn belonging to his mother, where it was agreed that she should change her dress. The deceased was never heard of afterwards ; and the various and contradictory accounts given of her by the prisoner having excited suspicions, which were confirmed by other circum- stances, it was ultimately determined to search the barn ; where, on the 19th of April, after an interval of nearly twelve months, the body of a female was found, which was clearly identified as that of the deceased. A handkerchief was drawn tightly round the neck, and a wound from a pistol-ball was traced through the left cheek, passing out at the right orbit ; and three other wounds were found, all of which had been made by a sharp instrument, and one of which had entered the heart. The prisoner, who in the interval had removed from the neigh- bourhood, upon his apprehension denied all know- ledo-e of the deceased ; but in his defence he admitted the identity of the remains, and alleged that an altercation took place between them at the barn, in consequence of which, and of the violence of temper exhibited by the deceased, he expressed his deter- mination not to marry her, and left the barn ; but that immediately afterwards he heard the report 0/ IN CASES OF HOMICIDE, 293 a pistol, and going back found the deceased on the ground apparently dead ; and that, alarmed by the situation in which he found himself, he formed the determination of burying the corpse and accounting for her absence as well as he could. But the variety of the means and instruments employed to produce death, some of them unusual with females, in connec- tion with the contradictory statements made by the prisoner to account for the absence of the deceased, entirely discredited the account set up by him, and he was convicted. He afterwards made a full confession, and v/as executed pursuant to his sen- tence {0). In 1884 a woman was tried before Mr. Justice Hawkins for the murder of her husband by shoot- ing him. The defence was suicide. The medical evidence showed that death was caused by four bullet wounds from a revolver ; that, although any one of them might have been self-inflicted, it was highly improbable that all four were ; and that, in order to cause one of the wounds upon himself, the deceased man must have held the revolver in his left hand. It was also proved that he was right- handed. The prisoner was convicted (/>). But these heads of evidence belono- rather to the department of medical jurisprudence. Such auxiliary evidence is frequently of the highest value in demonstrating the falsehood and impossibility of the alleged defence ; but, when uncorroborated by (0) Hex V. Corder, Bury St. Edmund's Summ. Assizes, 1828. (/>) Rex\. Gibbons, C. C. C. Sess. Pap., December 18 & 19, 1884. 294 PROOF OF THE CORPUS DELICTI conclusive moral circumstances, it must be received with a certain amount of circumspection and reserve, of the necessity for which some striking illustrations have occurred in other parts of this essay (q). These preliminary considerations naturally lead to the application of them to the proof of the corpus delicti in some special cases of great importance and interest. Section 4. application of the general principle to the proof of the corpus delicti in cases of poisoning. There are two classes of cases of criminal homicide, in which the cause of death can rarely be proved by direct evidence, and in which the proof of it by circumstantial evidence is attended with peculiar difficulties : those, namely, of poisoning and infanti- cide. An examination of the principles on which courts of law proceed in the investigation of such cases will afford an instructive commentary upon the foregoing principles of evidence and procedure. I. Among the most important grounds upon which the proof of criminal poisoning commonly rests are, the symptoms during life, Siiid post-mortem appearances ; but these subjects belong to another department of science, and have only an incidental connection with the subject of this treatise. As is the case with regard to all other questions of science, {g) See particularly, Rex v. Booth, pp. 146-148, supra ; and Reg. v Newton, pp. 148-154, supra. IN CASES OF POISONING. 295 courts of justice must derive their knowledge from the testimony of persons who have made them the objects of their special study, applying to the data thus obtained those principles of interpretation and judgment which constitute the tests of truth in all other cases. It is obviously essential that the particular sym- ptoms and post-niorti in appearances should be shown to be not incompatible with the hypothesis of death from poison. In general such appearances are in- conclusive, since, though they are commonly charac- teristic of death from poison, they not unfrequently resemble the appearance of disease, and may have been produced by some natural cause. Neverthe- less, as to some particular poisons, the symptoms may be so characteristic as to afford unmistakable evidence of poisoning, and preclude all possibility of referring the event of death to any other cause. Thus in Palmer's case (r), it was conclusively shown by numerous witnesses of the greatest professional experience, that the symptoms in the course of their progress w^ere clearly distinguishable from those of tetanus or any other known form of disease, and were not only consistent with, but specially charac- teristic of, poisoning by strychnine. It is a very important circumstance In corrobora tion of the reality of alleged poisoning, if several persons are simultaneously affected with symptoms indicative of poisoning, after partaking of the same food, as when four members of a family were taken (r) See pp. 344-35 ii inf^<*- 296 PROOF OF THE CORPUS DELICTI ill after having eaten of yeast dumplings made by the prisoner, who was the cook, while those members who had not partaken of them were not affected (s). The probability in such cases is greatly strength- ened if the violence of the symptoms has been in proportion to the quantities of the suspected food taken by the parties (/) ; and, on the other hand, a favourable presumption is created, if only one mem- ber of a family is taken ill after partaking of food of which other members have eaten with impunity (?/). From the nature of the case, these elements of proof never occur alone ; but are necessarily blended with facts of a more conclusive character. 2. The possession of poisonous matter by the person charged with the administration of it, is always an important fact, and when death has been caused by poist)n of the same kind, and no satisfactory ex- planation of that fact is given by the accused or suggested by the surrounding circumstances, a strong inference of guilt may be created against the ac- cused ; especially if he has attempted to account for such possession by false statements. In Palmer's (s) Rex V. Fc7i7ii7ig, coram the Recorder of London, O. B. Sess. Pap., 18 1 5. Cf. p. 218, sttpra. The evidence against this young girl was most unsatisfactory, and she was long thought to have been unjustly convicted (3 Mem. of Romilly, 235 ; Suggestions for the Repression of Crime, by M. D. Hill, 31) ; but it has been stated on good authority that she made a confession to a minister of religion, who had her confidence (see "The Times" of Aug. 5, 1857). It is unaccountable that the statement should have been withheld, and the public suffered to remain for nearly half a century under the belief that she was wrongfully executed. (/) Rexv. Alcorn, Syme's Justiciary Rep. 221. («) Rex v. Bickle, Exeter Summ. Ass. 1834, coram Patteson, J, IN CASES OF POISONING. 297 case, the Lord Chief Justice Lord Campbell said that if the jury should come to the conclusion that the symptoms which the deceased had exhibited were consistent with strychnia, a fearful case was made out against the prisoner. " I have listened," said the learned judge, " with the most anxious attention to know what explanation would be given respecting the strychnia that has been purchased by the prisoner. There is no evidence of the intention with which it was purchased, there is no evidence how it was applied, what became of it, or what was done with it " (,v). 3. Not only must it appear that the accused possessed the deadly agent, but it is indispensable to show that he had the opportunity of administering it. Upon the effect of these heads of evidence, and upon the caution with which they ought to be received, some valuable observations were made by Mr. Baron Rolfe in a case before him. The prisoner was indicted for the murder of his wife, who was taken ill on the morning of the 25th of November, and died two days afterwards with symptoms resembling those of an irritant poison. Poisoning not having been suspected, the body was interred without examination ; but suspicions having afterwards arisen, it was exhumed in the month of June following, and a large quantity of arsenic was discovered in the stomach. Several weeks after the apprehension of the prisoner, the police took possession of some of his garments, which were found hanging up in his lodgings, in the pockets of {x) See pp. 344-35 1 > "J/'^^- 298 PROOF OF THE CORPUS DELICTI which arsenic was found. In his address to the jury, Mr. Baron Rolfe said, " H;k1 the prisoner the opportunity of administering poison ? — that is one thing. Had he any motive to do so ? — that is another. There is also another question, which is most important ; it is whether the person who had the opportunity of administering poison had poison to administer? If he had not the poison, the having the opportunity becomes unimportant. If he had the poison, then another question arises — did he get it under circumstances such as to show that it was for a guilty or improper object ? The evidence by which it is attempted to trace poison to the possession of the prisoner is, that on a certain occa- sion, after the death of his wife, and after he him- self was apprehended, the contents of the pockets of a coat, waistcoat, and trousers, on being tested by the medical witnesses, were found to contain arsenic ; and that, a week afterwards, another waist- coat which came into the possession of the police- man, on being examined, was also found to contain arsenic. Does that bring home to the prisoner the fact that he had arsenic in his possession in Novem- ber ? It is not conclusive that, because he had it in June, he had it in November. I infer from what has been stated by the medical men, that the quantity of arsenic found in the pockets of the clothes was very small. Now, if he had it in a larger quantity in November, and it had been used for some purpose, being a mineral substance, such particles were likely to remain in the pockets, and finding it there in June is certainly evi- dence that it might have been there in larger IN CASES OF POISONING. 299 quantity in November ; but, obviously, by no means conclusive, as it mi^ht have been put in afterwards. But, conn(;cted with the arsenic bein<( found in the clothes, there are other considerations which are worthy to be attended to. The prisoner was appre- hended on the 9th of June, and he knew long before that time that an inquiry was goins^' on. He was taken up, not in the clothes in which the arsenic was found ; and a fortnight afterwards a batch of clothes was given up in which arsenic was detected. Now, if arsenic had been found in the clothes he was wearing, it would be perfectly certain, in the ordinary sense, that he had arsenic in his possession. But it is going a step further to say that because arsenic is discovered in clothes of his, accessible to so many people between the time of his appre- hension and their being given up, it was there when he was apprehended ; in all probability it was, but that is by no means the necessary consequence. This observation is entitled to still more weight, with regard to the waistcoat last given up to the police, because it was not given up till three weeks after the prisoner was apprehended, and had been hanging in the kitchen, accessible to a variety of persons. . . It is urged also that arsenic is used for cattle. It may be so, and it may be that the prisoner may innocently have had arsenic. The circumstance of there being arsenic in so many pockets ought not to be lost sight of, for it can scarcely be conceived that a guilty person should be so utterly reckless as to put the poison he used into every pocket he had. One would have thought that he would have kept it concealed, or put it only 300 PROOF OF THE CORPUS DELICTI in some safe place for the immediate purpose of being used ; and it is worthy of observation that it does not appear to have been put into the clothes in such a way as it would have been put had the prisoner been desirous to conceal it." The prisoner was acquitted (j'). In a later case of the deepest interest, before the High Court of Justiciary at Edinburgh, a question whether or not the prisoner had the opportunity of administerino" arsenic to the deceased was the turning-point of the case. The prisoner, a young girl of nineteen, was tried upon an indictment chareingf her, in accordance with the law of Scot- land, with the administration to the same person of arsenic, with intent to murder, on two several occasions in the month of February, and with his murder by the same means on the 22nd of March following. She had returned home from a boarding school in 1853, and in the following year formed a clandestine connection with a foreigner of inferior position, named L'Angelier, whose addresses had been forbidden by her parents. Early in 1856 their intercourse assumed an unlawful character, as was shown by her letters. In the month of December following, another suitor appeared, whose addresses were accepted by her with the consent of her parents, and arrangements were made for their marriage in June. During the earlier part of this engagement, the prisoner kept up her interviews and correspondence with L'Angelier ; but the correspondence gradually became cooler, and she (y) Jieg: V. Graham^ Carlisle Summer Assizes, 1845. IN CASES OF POISONING. 3OI expressed to him her determination to break off the connection, and implored him to return her letters ; but this he refused to do, and declared that she should marry no other j>erson while he lived. After the failure of her efforts to obtain the return of her letters, she resumed in her correspondence her former tone of passionate affection, assuring him that she would marry him and no one else, and denying that there was any truth in the rumours of her connection with another. She appointed a meeting on the night of the 19th of February, at her father's house, where she was in the habit of receiving his visits, after the family had retired to rest, telling him that she wished to have back her "cool letters," apparently with the intention of inducinof him to believe that she remained constant in her attachment to him. In the middle of the night after that interview, at which he had taken coffee prepared by the prisoner, L'Angelier was seized with alarming illness, the symptoms of which were similar to those of poisoning by arsenic. There was no evidence that the prisoner possessed arsenic at that time, but on the 21st she purchased a large quantity, professedly for the purpose of poisoning rats, an excuse for which there was no pretence. On the nicrht of the 22nd, L'x'\nQ:elier aQfain visited the prisoner, and about eleven o'clock on the follow- ing day was seized with the same alarming symptoms as before ; and on this occasion also he had taken cocoa from the hands of the prisoner. After this attack L'Angelier continued extremely ill, and wasad- vised to go from home for the recovery of his health. On the 6th of March the prisoner a second time 302 PROOF OF THE CORPUS DELICTI bought arsenic ; and on the same day she went with her family to the Bridge of Allan (where she was visited by her accepted lover), and remained till the 17th, when they returned to Glasgow. On the day before her departure for the Bridge of Allan L'Angelier wrote a letter to her, in which he re- proached her for the manner in which she had evaded answering the questions which he had put to her in a former letter respecting her rumoured engagement with another person, expressed his conviction that there was foundation for the report, and after repeating his inquiries threatened, if she again evaded them, to try some other means of coming at the truth. To this letter, the prisoner replied from the Bridge of Allan, that there was no foundation for the report, and that she would answer all his questions when they met, and informed him of her expected return to Glasgow on the 17th of March. L'Angelier, pursuant to medical advice, on the loth of March went to Edinburgh, leaving directions for the transmission of his letters, and having become much better, left that place on the 19th for the Bridge of Allan. During this interval, namely, on the 17th, he returned to his lodgings at Glasgow, and inquired anxiously jf his landlady if there was no letter waiting for him, as the prisoner's family were to be at home on that day, and she was fo write to fix another interview. He left Glasgow again on Thursday the 19th for the Bridge of Allan, leaving directions as before for the transmission to him of any letter which might come for him during his absence. On the 18th of March, the prisoner a third time purchased a large quantity of arsenic, alleging, IN CASES OF POISONING. 303 as before, that It was for the purpose of killing- rats. A letter from the prisoner to L'Angelier came to his lodgings on Saturday the 21st, from the date and contents of which it appeared that she had written a letter appointing to see him on the 19th ; he had not, however, received it in time to enable him to keep her appointment. In that letter she urged him to come to see her, and added, " I waited and waited for you, but you came not. I shall wait again to-morrow night, same time and arrange- ment." This letter was immediately transmitted to L'Angelier, and in consequence he returned to his lodgings at Glasgow about eight o'clock on the evening of Sunday the 22nd, in high spirits and improved health, having travelled a considerable distance by railway, and walked fifteen miles. He left his lodo-incrs about nine o'clock, and was seen going leisurely in the direction of the prisoner's house, and about twenty minutes past nine he called at the house of an acquaintance who lived about four or five minutes' walk from the prisoner's resi- dence. After leaving his friend's house, all trace of him was lost, until two o'clock in the morning, when he was found at the door of his lodgings, unable to open the latch, doubled up and speechless from pain and exhaustion, and about eleven o'clock the same morning he died, from the effects of arsenic, of which an enormDus quantity was found in his body. The prisoner stated in her declaration that she had been in the habit of using arsenic as a cosmetic, and denied that she had seen the deceased on that eventful niorht ; whether she had done so or not was the all-momentous question. As there was 304 PROOF OF THE CORPUS DELICTI no evicU^nce that the prisoner possessed poison at the time of the first ilhiess, nor any analysis made of the matter ejected on either the first or second illness, the learned Lord Justice Clerk said that there was no proof of the administration of poison on either of those occasions ; that the first charge therefore had entirely failed, and that it was safer not to hold that the second illness was caused by poison. As to the principal charge of murder, his Lord- ship said, " Supposing you are quite satisfied that the prisoner's letter brought L'Angelier again into Glasgow, are you in a situation to say, with satisfaction to your consciences, as an inevitable and just result from this, that the prisoner and deceased met that night? — that is the point in the case. It is for you to say whether it has been proved that L'Angelier was in the house that night. Can you hold that that link in the chain is supplied by just and satisfactory inference — remember that I say just and satisfactory — and it is for you to say whether the inference is satisfactory and just, in order to complete the proof .f* If you really feel that you may have the strongest suspicion that he saw her — and no one need hesitate to say that, as a matter of moral opinion, the whole probabilities of the case are in favour of it — but if that is all the amount that you can derive from the evidence, the link still remains wanting in the chain, the cata- strophe and the alleged cause of it are not found linked together. And therefore you must be satis- fied that you can here stand and rely upon the firm foundation, I say, of a just and sound, and perhaps IN CASES OF rOISONING. 305 I may add, inevitable inference. That a jury is entitled often to draw such an inference there is no doubt. . . If you find this to be a satisfactory and just inference, 1 cannot tell you that you are not at liberty to act upon it, because most of the matters occurring in life must depend upon circumstantial evidence, and upon the inferences which a jury may feel bound to draw. But it is an inference of a very serious character — it is an inference upon which the death of this party by the hand of the prisoner really must depend. And then, you will take all the other circumstances of the case into your consideration, and see whether you can infer from them that they met. If you think they met together that night, and he was seized and taken ill, and died of arsenic, the symptoms beginning shortly after the time he left her, it will be for you to say whether in that case there is any doubt as to whose hand administered the ooison." In another part of his charge the learned Judge said : — " In the ordinary matters of life, when you find the man came to town for the purpose of getting a meeting, you may come to the conclusion that the meeting did take place ; but, observe, that becomes a very serious inference indeed to draw in a case where you are led to suppose that there was an adminis- tration of poison, and death resulting therefrom. It may be a very natural inference, looking at the thing morally. None of you can doubt that she waited for him again ; and if she waited the second night, after her first letter, it was not surprising that she should look out for an interview on the second night, after the second letter. , . • She says, ' I C.E. X 306 PROOF OF THE CORPUS DELICTI shall wait ayaiii to-morrow ni^ht, same hour and arrangement.' And I say there is no doubt — but it is a matter for you to consider — that after writing this letter he might expect she would wait another night, and therefore it was very natural that he should oo to see her that Sunday nio^ht. " But this is an inference only. If you think it such a just and satisfactory inference that you can rest your verdict upon i.t, it is quite competent for you to draw such an inference from such letters as these, and from the conduct of the man coming to Glasgow for the purpose of seeing her — for it is plain that that was his object in coming to Glasgow. It is sufficiently proved that he went out im- mediately after he got some tea and toast, and had changed his coat. But then, in drawing an in- ference, you must always look to the important character of the inference which you are asked to draw. If this had been an appointment about business, and you found that a man came to Glas- gow for the purpose of seeing another upon business, and that he went out for that purpose, having no other object in coming to Glasgow, you would probably scout the notion of the person whom he had gone to meet saying, ' I never saw or heard of him that day ' ; but here you are asked to draw the inference that they met upon that night, where the fact of their meeting is the foundation of a charge of murder. You must feel, therefore, that the drawing of an inference in the ordinary matters of civil busi- ness, or in the actual intercourse of mutual friends, is one thing, and the inference from the fact that he came to Glasgow, that they did meet, and that, IN CASES OF POISONING. 307 therefore, the poison was administered to him by her at that time, is another, and a most enormous juiiij) in the category of inferences. Now, the ques- tion for you to put to yourselves is this — Can you now, with satisfaction to your own minds, come to the conclusion that they did meet on that occasion, the result being, and the object of coming to that conclusion being, to fix upon her the administration of the arsenic by which he died ? " She has arsenic before the 22nd ; and that is a dreadful fact, if you are quite satisfied that she did not get it and use it for the purpose of washing her hands and face. It may create the greatest reluc- tance in your minds to take any other view of the matter, than that she was guilty of administering it somehow, though the place where may not be made out, or the precise time of the interview. But, on the other hand, you must keep in view that arsenic could only be administered by her if an interview took place with L'Angelier ; and, though you may be satisfied morally that it did take place, the fact still rests upon an inference alone ; and that in- ference is to be the ground, and must be the ground, on which a verdict of guilty is to rest. You will see, therefore, the necessity of great caution and jealousy in dealing with any inference which you may draw from these facts. You may be perfectly satisfied that L'Angelier did not commit suicide ; and of course it is necessary for you to be satisfied of that before you could find that anybody administered arsenic to him. Probably none of you will think for a moment that he went out that night and that, without seeing her, and without knowing what she X 2 308 PROOF OF THE CORPUS DELICTI wanted to see him about, he swallowed above 200 grains of arsenic in the street, and that he was carrying it about with him. Probably you will discard such an idea altogether, . . . yet, on the other hand, keep in view that that will not of itself establish that the prisoner administered the poison. The matter may remain most mysterious — wholly unexplained ; you may not be able to account for it on any other supposition ; but still that supposition or inference may not be a ground on which you can safely and satisfactorily rest your verdict against the panel. " Now then, gentlemen, I leave you to consider the case with reference to the views that are raised upon this correspondence. I don't think you will consider it so unlikely as was supposed, that this girl, after writing such letters, may have been capable of cherishing such a purpose. But still, although you may take such a view of her character, it is but a supposition that she cherished this murderous purpose — the last conclusion of course that you ought to come to merely on supposition and inference and observation, upon this varying and wavering correspondence, of a girl in the circumstances in which she was placed. It receives more importance, no doubt, when you find the pur- chase of arsenic just before she expected, or just at the time she expected, L'Angelier. But still these are but supposirions ; they are but suspicions. . I don't say that inferences may not competently be drawn ; bijt I have already warned you as to inferences which may be drawn in the ordinary matters of civil life, and those which may be drawn IN CASES OF POISONING. 309 in such a case as this ; and therefore if you cannot say, We find here satisfactory evidence of this meeting, and that the poison must have been ad- ministered by her at a meeting — whatever may be your suspicion, however heavy the weight and load of suspicion is against her, and however you may have to struggle to get rid of it, you perform the best and bounden duty as a jury to separate sus- picion from truth, and to proceed upon nothing that you do not find established in evidence against her." The jury returned, in conformity with the law of Scotland, a verdict of not guilty on the first, and of not proven on the second and third charges (-s'). On the supposition that the parties met on the fatal evening in question, there could be but one con- clusion as to the guilt of the prisoner, the hypothesis of suicide being considered by the learned Judge as out of the question, as it obviously was ; and in the language of the learned Judge, "that this man, ardent to see this girl again, hoping to get the satisfactory answer which she had promised to give him respecting her runioured engagement with another, should hurry home on the Sunday night, and go out from his lodgings in the hope that he could find her waiting, and that there was the greatest probability of his seeing her, was, he thought, the only conclusion the jury could come to in the matter." Without presumption, it may be observed that the distinction thus drawn between "a very natural inference, looking at the thing morally," "an inference that may satisfy a jury {z) Reg. V. Madeleine Smith, June, 1857 ; Reports of A. F. Irvine, Advocate, and John Morrison, Advocate. 3IO -PROOF OF THE CORPUS DELICTI morally," so that " no one need hesitate to say as a matter of moral opinion, the whole [)robabilities of the case are in favour of it," and "as the only con- clusion the jury could come to," and that moral certainty which Is the only foundation of our confi- dence in the sufficiency and safety of conclusions based upon circumstantial evidence, and which in every case can be but Inferential, Is fine and shadowy in the extreme. Nor is it easy to reconcile with sound principle, as recognised in other cases, English and Scotch, any distinction in the applica- tion of the rules of evidence and Inference according as the subject-matter relates to the ordinary or the uncommon events of life (a). And even upon that supposition, surely no matter or occasion of ordinary business could have been more important to her, or have more deeply interested the parties, or be more likely to bring two young persons so mutually implicated together, than the object of the anxiously looked-for meeting appointed for the night in question. It seems, indeed, difficult to conceive a more unsatisfactory treatment of the case from any logical or philosophical point of view. 4. The science of chemistry generally affords most important auxiliary evidence as to the corpus delicti in the investigation of cases of imputed poisoning. As with regard to scientific evidence of every other kind, the processes and results of chemical analysis in application to the discovery or reproduction of poison are subordinated to the control of those general principles of law w^hlch, in (a) See Rex v. Ings^ and Reg. v. Hanson and others, p. 270, supra. IN CASES OF POISONING. 3 II all other cases, (govern the admissibility of evidence, and the estimation of its weight and effect : indeed, those rules have received some of their most in- structive illustrations from cases of this nature. Of the various chemical tests, unquestionably those which, applied to the human body or its con- tents or excreta, reproduce the particular poison which has been employed, are the most satisfactory, since, if the re-agents employed are free from im- purities, they give an infallible result. A remarkable exemplification of the necessity of this qualification occurred in a trial in which Reinsch's test, which hcid previously been regarded as infallible in the separation of arsenic, turned out to be fallacious when applied to potassium chlorate ; and, in fact, the arsenic which was found in the mixture had been liberated from the copper gauze employed in the experiment (b). In general, therefore, it may be considered as a sound rule of procedure, founded in justice and prudence, that such evidence, whenever it is capable of being obtained, ought to be adduced, and in such circumstances the failure to adduce such evidence, unexplained by satisfactory reasons, gives serious ground for doubt as to the reality of the alleged poisoning. But some of the vegetable poisons are, in the {b) Reg. V. Smethurst, C. C. C. Sess. Pap., Aug. 1859, see p. 138, supra. But arsenic was also found in an evacuation not complicated with the same source of fallacy. 312 PROOF OF THE CORPUS DELICTI present state of science, beyond the reach of chemical processes, and, under certain conditions, ' also beyond the reach of physiological methods (^). The offender himself, by his chemical knowledge and choice of means, by the administration of minimum doses, or by the destruction of the portions of the body containing the suspected matter, or by the destruction, dilution, or other tampering with its exa^eta or contents, may have rendered detection by the reproduction of the deadly agent impracti- cable ; or the absorption of the poison, or a want of skill in the experimenter, or failure to employ the proper means, or other cause may have rendered the necessary chemical researches impracticable, unsatisfactory or inconclusive (rt'). The concurrence, moreover, of a plurality of characteristic tests, separately fallacious, but fallacious from different causes, may, in connection with strong moral facts, yield a result of so high a degree of probability as {c) The Editor is indebted to Dr. Dupre, F.R.S., for the following note : — " As regards chemical processes the case can be stated definitely, since, in the case of some vegetable poisons, even under the most favourable conditions, chemical methods alone would not enable us to determine, with any certainty, the particular poison present. " With regard to physiological methods the case is somewhat different. Under favourable conditions, i.e. a relatively large dose of poison administered, speedy death of the person poisoned, and the examination begun soon after death, there is, probably, no vegetable poison which could not then be identified by physiological tests, aided by chemical processes. When, however, the amount of poison given is small, only just sufficient to cause death, when the person has sui'vived for some time after the administration of the poison, and, lastly, the examination is begun some length of time after death, even physiological methods might, and probably would, fail to identify the poison." id) Rexv. Dotiellan, pp. 324-331, ijifra ; Reg. v. Sjiieihurst {set last paj^e) ; Reg. v. Palmer, pp. 344-351, infra. IN CASES OF POISONING. 313 to be perfectly convincing, though the poison has not been reproduced (e). It would be most unreasonable, therefore, and lead to the grossest injustice, and in some circum- stances to impunity for the worst of crimes, to require, as an imperative rule of law, that the fact of poisoning shall be established by any special and exclusive medium of proof, when that kind of proof is unattainable, and especially if it has been rendered so by the act of the offender himself. No universal and invariable rule, therefore, can be laid down ; and every case must depend upon its own particular circumstances ; and as, in all other cases, the corptis delicti must be proved by the best evidence which is capable of being adduced, and by such an amount and combination of relevant facts, whether direct or circumstantial, as establish the factum probanduni to a moral certainty, and to the exclusion of every other reasonable hypothesis. Tawell's case, which has been referred to more than once in these pages, is a useful illustration of the kind of evidence necessary to prove the corpus delicti, and contains an exhaustive summing-up of Mr. Baron Parke as to the duties of a jury in cases of this kind. The prisoner was tried at the Ayles- bury Spring Assizes, 1845, ^O'' the murder of Sarah Hart by poisoning her with prussic acid. The deceased woman entered the prisoner's service shortly before the death of his first wife, and when {e) Rex V. Elder, Syme's Justiciary Rep. 71, at p. 108 ; and see Rex V. Dontmll, pp. 331-336, ift/ra. 314 PROOF OF THE CORPUS DELICTI she left his service was pregnant by him, and eventually bore him two children. At the time of the murder she was residing in a small cottage at Slough, and was receiving ^13 a quarter from the prisoner, which was her only means of support. The prisoner had married a second wife, and was living in apparent comfort and respectability at Berkhampstead, though his account with his bankers was overdrawn. On the ist of January, Sarah Hart's next-door neighbour, hearing screams, came out of her cottage, walked down the garden path, and went to the garden gate of the deceased woman's cottage, where she met the prisoner coming out of the gate, evidently agitated and in haste. It being dark, she was carrying a candle, and looked at the prisoner and passed a remark to him ; and at the trial swore to his identity. He hurried on towards Slough, and she went into the cottage where she found the deceased woman on the floor moaning ; by the time a doctor was fetched she was dead. It was proved that shortly before this the woman was quite well, and had fetched a bottle of porter from a neighbouring house, and had borrowed a corkscrew. The bottle was in the room open, and two tumblers had been used. It was proved that on a previous occasion, when she had taken porter with the prisoner, she was taken suddenly ill. The woman's stomach was taken to London, and after tests for oxalic acid and other poisons had been applied, prussic acid was found, and the medical witnesses came to the conclusion that she had died of prussic acid poisoning. At that time it was not known that the prisoner was in IN CASES OF POISONING. 315 the habit of buying prussic acid ; but it was proved on the trial that on the day of the murder he had bought two drachms of Scheele's prussic acid in Bishopsgate Street, bringing his own bottle to be filled, but taking it away in another bottle ; also that on the following day he had none, for he went back to the shop and said he had lost it, and had the bottle which he had left the previous day filled. When arrested he declared that he had not been to Slough. The defence was largely based on the fact that the prisoner bought prussic acid for external appli- cation for varicose veins — which appeared to be true, so far as it went — that there was no proof that the woman died from the effects of prussic acid, and that its presence was due to the pips of apples which she had eaten. But it was proved by the medical men that prussic acid could not be obtained from food by natural digestion, but only by distilla- tion, and, as the learned judge pointed out to the jury, the peculiar smell of prussic acid was noticed in the stomach before it could have been set free by distillation. It was strenuously urged by the counsel for the prisoner that it was a rule of law that there ought to be positive proof of the 7node of death, and that such a quantity of poison must be found in the body of the deceased as would necessarily occasion death. But this doctrine was peremptorily repudiated by Mr. Baron Parke, who told the jury : " If the evidence satisfies you that the death was occasioned by poison, and that that poison was administered by the prisoner — if that is proved by circumstantial evidence, it is not necessary to J 1 6 PROOF OF THE CORPUS DELICTI give direct and positive proof of what is the quantity which woLikl destroy hfe, nor is it necessary to prove that such a quantity was found in the body of the deceased, if the other facts lead you to the con- clusion that the death was occasioned by poison, and that it was knowinirly administered by the prisoner. You must take this fact, just the same as all the other parts of the case, and see if you are satisfied, as reasonable men, whether the prisoner is guilty or not. The only fact which the law requires to be proved by direct and positive evidence is the death of the party, by finding the body ; or when such proof is absolutely impossible, by circum- stantial evidence leading closely to that result — as where a body was thrown overboard far from land — when it is quite enough to prove that fact without producing the body." His Lordship, in a subsequent part of his charge, said . " There is very reasonable evidence — sup- posing that to be required, which I tell you is not — that the quantity of prussic acid in the stomach amounted to one grain ; and although that is not necessary to be proved, the scientific evidence shows that one grain may be enough to destroy life." In reference to the argument urged by the prisoner's counsel, that the deceased might have died from some sudden emotion, the learned Judge said that it was within the range of possi- bility that a person might so die without leaving any trace on the brain ; they, however, were to judge whether they could attribute death to that cause, if they found strong evidence of the presence of poison ; because they were not to have recourse IN CASES OF POISONING. 317 to mere conjecture ; that, where the result of the evidence gave them the existence of a cause to which it might be rationally attributed, they were not to suppose, with(3Ut any reason for doing so, that it was to be attributed to any other cause (f). Lord Campbell, in Palmer's case, said that it was not to be expected that witnesses should be called to state that they saw the deadly poison ad- ministered by the prisoner, or mixed up by the prisoner openly before them. Circumstantial evi- dence, as to that, continued the learned Judge, is all that can be reasonably expected ; and if there were a series of circumstances leading to the conclusion of guilt, a verdict of guilty might satisfactorily be pronounced {g). With respect to the consideration that no strychnia was found in the body, it was for them to consider ; but there was no rule of law ac- cording to which the poison must be found in the body of the deceased, and all that they knew respecting the poison not being in the body was, that in that part of the body that w^as analysed by the witnesses no strychnia had been found (/^). 5. Of the various heads of evidence in charges of poisoning, that of moral conduct is of most general interest. The data of physiological and pathological and chemical science must always be matter of opinion testified to by skilled witnesses ; whereas, in the forensic discussion of moral facts, appeal is necessarily made to those psychological (/) Shorthand Report ; for references see p. 84, supra, {g) Official Shorthand Report, 1856, p. 308. Ih) lb. pp. 319-396. 3l8 PROOF OF THE CORPUS DELICTI principles of our nature which i^ive them pertinence and significance, and upon which intelligent persons are capable of forming a more or less trustworthy judgment. It would be absurd to suppose that such facts, when clearly connected by adequate in- dependent evidence with a corpus delicti^ are simply fortuitous and phenomenal ; on the contrary, they are the natural and unmistakable manifestations of the secret workings of the mind, not only throwing light upon and bringing into relief the character of the act itself, but tending also to discriminate the individual guilty actor. His necessities, his anti- pathies, or other motives, his reluctance to permit examination of the body, or its contents or excreta, or of other suspected matter — his contrivances to prevent it, his attempts to tamper with the witnesses or the officers of justice, or with such suspected matter, or with any other article of real evidence — his falsehoods, subterfuges, and evasions — these and many other circumstances constitute most material explanatory parts of the res gestce, and afford relevant and frequently conclusive evidence, from which his guilt may be inferred. In most criminal charges, the evidence of the corpus delicti is separable from that which applies to the indication of the offender ; but in cases of poisoning, it is often impossible to obtain conclusive evidence of the corpzis delicti, irrespectively of the explanatory evidence of moral conduct ; and Mr. justice BuUer, in Donellan's case, told the jury that ** if there was a doubt upon the evidence of the phy- sical witnesses, they must take into their considera- IN CASES OF POISONING. 3^9 tion all the other circumstances, either to show that there was poison administered, or that there was not, and that every part of the prisoner's conduct was material to be considered " (/). So in Donnall s case, Mr. Justice Abbott, in summing up, said to the jury that there were two important questions : first, did the deceased die of poison ? and if they should be of opinion that she did, then, whether they were satisfied from the evidence that the poison was administered by the prisoner or by his means ? There were some parts of the evidence which ap- peared to him equally applicable to both questions, and those parts were what related to the conduct of the prisoner during the time of the opening and inspection of the body ; his recommendation of a shell and the early burial ; to which might be added the circumstances, not much to be relied upon, relative to his endeavours to evade his apprehension. His Lordship also said, as to the question whether the deceased died by poison, " in considering what the medical men have said upon the one side and the other, you must take into account the conduct of the prisoner in urging a hasty funeral, and his conduct in throwing away the contents of the jug into the chamber utensil " (jk). The Lord Chief Justice Lord Campbell, in his charge to the jury in Palmer's case, said that " in cases of this sort the evidence had often (/) Gurney's Shorthand Report, p. 53 ; see p. 37, supra. A full account of the case is given at pp. 324-331, infra. ik) Frazer's Shorthand Report, pp. 127, 177. See pp. 331-336, i7i/ra where a full account of this case is given 320 PROOF OF THE CORPUS DELICTI been divided into medical and moral evidence ; the medical being" that of the scientific men, and the moral the circumstantial facts which are calculated to prove the truth of the charge against the party accused. They cannot," he continued, " be finally separated in the minds of the jury, because it is by the combination of the two species of evidence that their verdict ought to be found. In this case you will look at the medical evidence to see whether the deceased, in your opinion, did die by strychnia or by natural disease ; and you will look at what is called the moral evidence, and consider whether that shows that the prisoner not only had the opportunity, but that he actually availed himself of that opportunity, to administer to the deceased the deadly poison of which he died " (/), His Lordship also said " It is impossible that you should not pay attention to the conduct of the prisoner, and there are some instances of his conduct as to which you will say whether they belong to what might be expected from an innocent or a guilty man. He was eager to have the body fastened down in the coffin. Then with r'^gfard to the bettingr-book, there is cer- tainly evidence from which you may infer that he did get possession of the deceased's betting-book, and that he abstracted it and concealed it. Then, you must not omit his conduct in trying to bribe the post-boy to overturn the carriage in which the jar was being conveyed to be analysed in London, and from which evidence might be obtained of his guilt. Again, you find him tampering with the post-master, and procuring from him the opening of a letter, from (/) Reg. V. Palmer, p. 344, in^ra. Shorthand Report, p. 308. IN CASES OF POISONING. 32 1 the person who had been examining the contents of the jar to the attorney employed in the case. And then, you have tampering with the coroner, and an attempt to induce him to procure a verdict from the coroner's jury, which would amount to an acquittal. These are serious matters for your consideration, but you, and you alone, will say what inference is to be drawn from them. If not answered, they cer- tainly present a serious case for your considera- tion " (;;/). Among the most important circumstances of moral conduct, and in analogy with the rules which prevail in the proof of the corpus delicti in other cases, may be mentioned former acts of poisoning, or attempts to poison, whether the same individual, or other members of the same family, where such successive administrations throw light upon the particular act which forms the subject of inquiry. On a trial for murder by the administration of prussic acid in porter, evidence was admitted that the deceased had been taken ill several months before, after partaking of porter with the prisoner (72). And upon the trial of a woman for the murder of her husband by arsenic in September, evidence was admitted of arsenic having been taken by two of her sons, one of whom died in December, and the other in March following, and also by a third son, who took arsenic in April following, but did not die. Evidence was also admitted of a similarity of sym- ptoms in the four cases, that the prisoner lived in the same house with her husband and sons, and pre- (;«) Shorthand Report p. 320. («) Reg. v. Tawell, pp. 313-317, supra, C.E. y 32 2 PROOF OF THE CORPUS DELICTI pared tVieir tea, cooked their victuals, and distributed them to the four parties. Lord Chief Baron Pollock said his oj-)inion was that evidence was receivable that the deaths of two sons, and the illness of the third, proceeded from the same cause, namely, arsenic. The tendency of such evidence, he said, was to prove, and to confirm the proof already given, that the death of the husband, whether felonious or not, was occasioned by arsenic. In that case he thought it wholly immaterial whether the deaths of the sons took place before or after the death of the husband. The domestic history of the family during the period that the four deaths occurred, was also receivable in evidence to show that during that time arsenic had been taken by four members of it, with a view to enable the jury to determine whether such taking was accidental or not. The evidence, he said, was not inadmissible, by reason of its tendency to prove, or to create a suspicion of a subsequent felony. His Lordship, after taking time to consider, refused to reserve the point for the opinion of the Judges, under II & 12 Vict. c. 78, and stated that Mr. Baron Alderson and Mr. Justice Talfourd concurred in opinion with him {0). But, nevertheless, moral facts apparently calculated to create the greatest suspicion may not be really {0) Reg. V. Geering, i8 L. J. M. C. 215 ; approved in a recent case before the Privy Council : Makm v. The A. G. for New South Wales, 1894, App. Cas. 57. Cf. 3.\so Reg. v. Francis, L.R. 2 C.C. 128, and Reg. v. Flanftagaft, 15 Cox, 403 (murder by arsenical poisoning), and other cases upon this subject cited and discussed in Archbold's Criminal Pleading (22nd ed.), pp. 283-287. See also note to Ch. iiu s. 2, p. 63, supra. IN CASES OF POISONING. 323 of a suspicious nature, or may be too fallacious and uncertain to justify conviction, especially where the corpus delicti is matter of inference only, and not established by independent evidence. Justice re- quires that such facts should be interpreted in a spirit of candour, and with proper allowance for the weaknesses of men who may be suddenly placed in circumstances of suspicion and difficulty. It is well known, for example, that many persons, more especially in the humbler classes, feel great repug- nance to permit the bodies of their friends to be subjected to anatomical examination. The mani- festation of such repugnance is a fact to be taken into account like all other facts. But althouQfh in the case of violent or sudden death, and particu- larly when caused by poison, it must be known that the post-7noi'tem examination is of the highest im- portance, it by no means follows that objection to permit such examination proceeds from the con- sciousness of guilt. In a case of this kind, Mr. Baron Rolfe said that the question was, from what motive the reluctance arose ? On the one hand, it was suggested that it was because the prisoner did not wish the cause of his wife's death to be in- vestigated, being afraid it would be discovered that she had died from arsenic ; on the other, that his reluctance arose from his horror of the notion of his wife's dead body being taken up, and exposed to the investio-ation of the surgeons, at which the feelings were apt to revolt. Many persons, no doubt, felt very great horror at the notion of such thino^s beino- clone to themselves, or those connected with them ; whilst others, again, were indifferent Y 2 324 PROOF OF THE CORPUS DELICTI on the subject, leaving their own bodies to be dissected. P)iJt few persons liked to have their wives or their daughters so exposed ; the prisoner, said the learned Judge, might not be one of those few, and his feelings on that subject might have prompted the remark alleged against him ; and surely he must have known that any reluctance expressed by him to an inquiry, or wish to stop it, would only tend to make those, who were about to make it, persevere (/). It happens of necessity that in every case of the kind under discussion there is a concurrence of evidence derived, if not from all, at least from several of the sources which have been mentioned ; so that the strength of the conviction finally pro- duced depends not merely upon the sum of the separate forces, but upon that superior force ana- logous to a geometrical progression, which is the consequence of their combination. An analysis of some of the most remarkable recorded cases of criminal poisoning which have occurred in our judicial annals, will form an interest- ing commentary upon the general rules of evidence, more especially in their application to the inter- pretation of moral inculpatory facts. John Donellan, Esq., was tried at Warwick spring assizes, 1781, before Mr. Justice Buller, for the murder of Sir Theodosius Boughton, his brother- in-law, a young man of fortune, twenty years of (Ji) Reg V. Graham^ pp. 297-300, supra. IN CASES OF POISONING. 325 age, who up to the moment of his death had been in good health and spirits, with the exception of a trifling local ailment, for which he occasionally took a laxative draught. Mrs. Donellan was the sister of the deceased, and together with Lady Boughton his mother lived with him at Lawford Hall, the family mansion. On attaining twenty- one. Sir Theodosius would have been entitled absolutely to an estate of ^2,000 per annum, the greater part of which, in the event of his dying under that age, would have descended to the prisoner's wife. For some time before the death of Sir Theodosius, the prisoner had on several occasions falsely represented his health to be very bad, and his life to be precarious, and not worth a year's purchase, though to all appearance he was well and in good health. On the 29th of August the apothecary in attendance sent him a mild and harmless draught, to be taken the next morning. In the evening the deceased was out fishing, and the prisoner told Lady Boughton that he had been out with him, and that he had imprudently got his feet wet, both of which statements were false. When called the following morning he was in good health ; and about seven o'clock his mother went to his chamber for the purpose of giving him his draught, which was kept — at the prisoner's suggestion, made after Sir Theodosius had on one occasion complained of forgetting to take it — upon the open shelf of his outer room, instead of locked up in his closet as formerly. On taking the draught on this occasion he observed that it smelt 326 PROOF OF THE CORPUS DELICTI and tasted very nauseous, and Lady Boughton re- marked that she thought it smelt very strongly like bitter almonds. In about two minutes he struggled very much, as if to keep the medicine down, and Lady Boughton observed a gurgling in his stomach ; in ten minutes he seemed inclined to doze, but in five minutes afterwards she found him with his eyes fixed, his teeth clenched, and froth running out of his mouth, and within half an hour after taking the draught he died. Lady Boughton ran downstairs to give orders to a servant to go for the apothecary, who lived about three miles distant ; and in less than five minutes the prisoner came into the bedroom, and after she had given him an ac- count of the manner in which Sir Theodosius had been taken, he asked where the physic-bottle was, and she showed him the two bottles. The prisoner then took up one of them and said, " Is this it ? " and being answered '* Yes," he poured some water out of the water-bottle, which was near, into the phial, shook it, and then emptied it into some dirty water, which was in a washhand basin. Lady Boughton said, " You should not meddle with the bottle " ; upon which the prisoner snatched up the other bottle and poured water into that also, and shook it, and then put his finger to it and tasted it. Lady Boughton again asked what he was about, and said he ought not to meddle with the bottles ; on which he replied, he did it to taste it, though he had not tasted the first bottle. The prisoner ordered a servant to take away the basin, the dirty things, and the bottles, and put the bottles into her hands for that purpose ; she put them down again, IN CASES OF POISONING. 327 on being directed by Lady Bough ton to do so, but subsequently, while Lady Boughton's back was turned, removed them on the peremptory order of the prisoner. On the arrival of the apothecary the prisoner said the deceased had been out the preceding evening fishing, and had taken cold ; but he said nothing of the draught which he had taken. The prisoner had a still in his own room, which he had used for distilling roses, and a few days after the death of Sir Theodosius he brought it full of wet lime to one of the servants to be cleaned. The prisoner made several false and inconsistent state- ments to the servants and others as to the cause of the young man's death, attributing it at one time to his having been out late fishing, and getting his feet wet, and at another to the bursting of a blood-vessel, and again to the malady for which he was under treatment, and the medicine given to him. On the day of his death he wrote to Sir William Wheeler, Sir Theodosius's guardian, to inform him of the event, but made no reference to its suddenness. The coffin was soldered up on the fourth day after the death. Two days afterwards. Sir William, in consequence of the rumours which had reached him of the manner of his ward's death, and that suspicions were entertained that he had died from the effect of poison, wrote a letter to the prisoner, requesting that an examination might take place, and men- tioning the gentlemen by whom he wished it to be conducted. He accordingly sent for them, but did not exhibit Sir William Wheeler's letter alluding to the suspicion that the deceased had been poisoned, 328 PROOF OF THE CORPUS DELICTI nor did he mention to them that they were sent for at his request. Having been induced by the prisoner to suppose the case to be one of ordinary sudden death, and finding the body in an advanced state of putrefaction, the medical gentlemen declined to make the examination, on the ground that it might be attended with personal danger. On the following day, a medical man, who had heard of their refusal to examine the body, offered to do so ; but the prisoner declined his offer, on the ground that he had not been directed to send for him. On the same day the prisoner wrote to Sir William a letter, in which he stated that the medical men had fully satis- fied the family, and endeavoured to account for the event by the ailment under which the deceased had been suffering ; but he did not state that they had not made the examination. Three or four days after- wards. Sir William, having been informed that the body had not been examined, wrote to the prisoner insisting that it should be done ; which, however, he prevented, by various disingenuous contrivances, and the body was interred without examination In the meantime, the circumstances having become known to the coroner, he caused the body to be dis- interred, and examined on the eleventh day after death. Putrefaction was found to be far advanced ; the head was not opened, nor the bowels examined, and in other respects the examination was incomplete. When Lady Boughton, in giving evidence before the coroner's inquest, related the circumstance of the prisoner having rinsed the bottles, he was observed to take hold of her sleeve, and endeavour to check her ; and he afterwards told her that she had no IN CASES OF POISONING. 329 occasion to have mentioned that circumstance, but only to answer such questions as were put to her; and in a letter to the coroner and jury, he endeavoured to impress them with the beHef that the deceased had inadvertently poisoned himself with arsenic, which he had purchased to kill fish. Experi- ments made by the administration of laurel-water on various animals produced convulsions and sudden death, and on opening one of them a strong- smell of laurel-water was perceived. Upon the trial, four medical men, three phy- sicians, and an apothecary, were examined on the part of the prosecution, and expressed a very decided opinion — mainly grounded upon the symptoms, the suddenness of the death, the post- viorieni appearances, the smell of the draught, as observed by Lady Boughton, and the similar effects produced by experiments upon animals — that the deceased had been poisoned with laurel-water ; and one of them stated that, on opening the body, he had been affected with a peculiar acrimonious, biting sensation in the hands and mouth, like that which affected him in all the subsequent experiments with laurel-water. An eminent surgeon and anatomist, examined on the part of the prisoner, stated a positive opinion that the symptoms did not neces- sarily lead to the conclusion that the deceased had been poisoned, and that the appearances presented upon dissection indicated nothing but putrefaction. Mr. Justice Duller, in his charge to the jury, called their attention to the suddenness of the death immediately after the administration of the draught 2,2,0 PROOF OF THE CORPUS DELICTI — to the opinions of the medical witnesses that there was nothing to lead them to attribute death to any Other cause than that draught ; to the prisoner's misrepresentations as to the deceased's state of health at a time when he appeared to others to be in good health and spirits ; to his contrivances to prevent the examination of the body, and emphati- cally to the fact of his having rinsed out the bottle from which the draught had been taken, " which," said the learned Judge, " does carry with it strong marks of knowledge by him that there was some- thing in that bottle which he wished should never be discovered " ; and, finally, to his attempts to check the witness who spoke to that circumstance while giving her evidence before the coroner. The prisoner was convicted and executed (^). This trial has given rise to much difference of opinion. Certainly the medical evidence was un- satisfactory, and there was no evidence to prove that the prisoner had been distilling laurel-water or to connect him with the fatal draught, although it was proved that he had a still in which he used to distil roses. But the manner in which death occurred, at the very instant of taking the draught, was all but conclusive that it contained some poisonous ingre- dient which was the cause of death ; and though this fact alone would not have excluded the hypothesis of a sudden death from accident or natural cause, its conjunction with so many circumstances of moral conduct of deep inculpatory import could admit of explanation only on the hypothesis of the (g) Shorthand Report by Gurney, 1781. See p. ^7^ supra. IN CASES OF POISONING. 33 1 prisoner's guilt. It is impossible to regard those circumstances in any other light than as the neces- sary indications, on the ordinary principles of human nature, of the moral causal origin of the fatal catastrophe (r). Robert Sawle Donnall, a surgeon and apothe- cary, was tried at Launceston spring assizes, 1817, before Mr. Justice Abbott, for the murder of Mrs. Elizabeth Downing, his mother-in-law. The prisoner and the deceased were next-door neighbours, and lived upon friendly terms ; and there was no suggestion of malice, nor could any motive be assigned which could have induced the prisoner to commit such an act, except that he was in somewhat straitened circumstances, and in the event of his mother-in-law's death would have become entitled to a share of her property. On the 19th of October the deceased drank tea at the prisoner's house, which was handed to her by him, and returned home much indisposed, retching and vomiting, with a violent cramp in her legs, from which she did not recover for several days. About a fortnight afterwards, after returning from church, and dining at home on boiled rabbits smothered with onions, upon the invitation of her daughter she drank tea in the evening at the prisoner's house with a family party. The prisoner on this occasion also handed to the deceased cocoa and bread and butter, proceeding towards her chair by a (r) The account of this case in The Theory of Presumptive Proof (London, 181 5) suppresses many of the most important facts, and is in other respects partial, garbled, and inaccurate ; the strictures upon the trial are most unfair, and the book itself is utterly unworthy of the author to whom it is commonly ascribed. 332 PROOF OF THE CORPUS DELICTI circuitous route ; but it was stated to have been his habit to serve his visitors himself, and not to allow them to rise from their chairs. When Mrs. Downing haddrunkabouthalf of her second cu}), she complained of sickness and went home, where she was seized with retching and vomiting, attended with frequent cramps ; and then a violent purging took place, and at ei":ht o'clock the next mornintr she died. None of the other persons who had been present on either of these occasions were taken ill. To a physician called in by the prisoner two or three hours before her death, he stated that she had had an attack of cJiolera morbus. The nervous coat of the stomach was found to be partially inflamed or stellated in several places, and the villous coat was softened by the action of some corrosive substance ; the blood-vessels of the stomach were turgid, and the intestines, particularly near the stomach, in- flamed. The contents of the stomach were placed in a jug, in a room to which the prisoner (to whom at that time no suspicion attached) had access, for examination ; but he clandestinely threw them into another vessel containing a quantity of water. The prisoner proposed that the body should be interred on the following Wednesday, assigning as a reason for so early an interment that from the state of the corpse there would be danger from keeping it longer — a statement for which there was no founda- tion. He also evinced much easferness to accelerate the funeral, urging the person who had the charge of it, and the men who were employed in making the vault, to unusual exertions. The physician called in to the deceased con- IN CASES OF POISONING. 333 cUidecl from the symptoms, the shortness of the ilhiess, and the morbid appearances, that she had died from the effects of some active poison ; and in order to discover the particular poison sup- posed to have been used, he appHed to the con- tents of the stomach the tests of the ammoniacal sulphate of copper, or common blue vitriol, and the ammoniacal nitrate of silver, or lunar caustic, in solution, which severally yielded the characteristic appearances of arsenic, the sulphate of copper pro- ducing a green precipitate, whereas a blue precipitate is formed if no arsenic is present, and the nitrate of silver producing- a yellow precipitate, instead of a white precipitate, which is thrown down if no arsenic is present. He stated that he considered these tests conclusive and infallible, and that he had used them because they would detect a minute portion of arsenic ; on which account he considered them to be more proper for the occasion, as, from the smallness of the quantity, from the frequent vomit- ings and purgings, and the appearance of the tests, he found there could not be much. Concludinpf that bile had been taken into the stomach, he mixed some bile with water, and applied to the mixture the same tests, but found no indication of the presence of arsenic ; from which he inferred that the presence of bile would not alter the conclusion which he had previously drawn. Having been informed that the deceased had eaten onions, he boiled some in water ; and after pouring off the water in which they were boiled, he poured boiling water over them and left them standing for some time, after which he applied the same tests to the 334 PROOF OF THE CORPUS DELICTI solution thus procured, and ascertained that it did not produce the characteristic appearances of arsenic. The witness, upon his cross-examination, admitted that the symptoms and appearances were such as might have been occasioned by some other cause than poisoning ; that the reduction test would have been infallible ; and that it might have been adopted in the first instance, and might also have been tried upon the matter which had been used for the other experiments. Upon his re-examination he accounted for his omission of the reduction test by stating that the quantity of matter left after the frequent vomit- ings and the other experiments would have been too small, and that it would not have been correct to use the matter which had been subjected to the preceding experiments. Several medical witnesses, called on the part of the prisoner, stated that the symptoms and morbid appearances, though they were such as might and did commonly denote poisoning, did not exclude the possibility that death might have been occa- sioned by cholera morbus or some other disease ; that the tests which had been resorted to were fallacious, since they had produced the same charac- teristic appearances upon their application to inno- cent matter, namely, the sulphate of copper a green, and the nitrate of silver a yellow precipitate, on being applied to an infusion of onions ; and that the experiment with the bile was also fallacious, since, from the presence of phosphoric acid, which is con- tained in all the fluids of the human body, the same coloured precipitate would be thrown down by putting lunar caustic into a solution of phosphate of soda. IN CASES OF POISONING. 335 The learned Judge, in his charge to the jury, said that none of the evidence of the witnesses for the prisoner went to show that the tests employed by the medical witnesses on the other side would not prove that arsenic was there if it were really there ; that the experiments made by the witnesses for the prisoner were made with onions in a different state from what onions boiled with rabbits are, as by that mode could be got a great portion of the juice or strength of the onions, in water, whereas in regard to onions prepared for the table, or boiled with a considerable quantity of water, a good por- tion of their juice is withdrawn from them ; that as to the experiment with the bile, if there were no phosphoric acid in the stomach of the deceased, or no quantity of it sufficient to produce that appear- ance, whatever might have been the appearance if sufficient were put in, then the experiment was tried on something that did not contain a sufficient quantity of that matter ; that although the same result might be produced by that matter, if there, yet if there is no reason to suppose that that matter was there or there in sufficient quantity, then he thought the suspicion that arsenic was there was very strong. His Lordship also said : "If the evi- dence as to the opinions of the learned persons who have been examined on both sides should lead you to doubt whether you should attribute the death of the deceased to arsenic having been administered to her, or to the disease called c/iolei'a morbus — then, as to this question as well as to the other question, the conduct of the prisoner is most material to be taken into consideration ; for he, being a 2;^6 PROOF OF THE CORPUS DELICTI medical man, could not be ignorant of many thinirs as to which ignorance might be shown in other persons : he could hardly be ignorant of the proper mode of treating chole7'-a morbus ; he could not be ignorant that an early burial was not necessary ; and when an operation was to be performed in order to discover the cause of the death, he should not have shown a backwardness to acquiesce in it ; and when it was performing, and he attending, he could not surely be ignorant that it was material for the purposes of the investigation that the contents of the stomach should be preserved for minute ex- amination " (5). His Lordship also said: "The conduct of the prisoner, his eagerness in causing the body to be put into a shell, and afterwards to be speedily interred, was a circumstance most material for their consideration, with reference to both the questions he had stated ; for although the examination of the body in the way set forth, and the experiments that were made, might not lead to a certain conclusion as to the charge stated, that the deceased got her death by poison administered to her by the prisoner, yet if the prisoner as a medical man had been so wicked as to administer that poison, he must have known that the examination of the body would divulge it " (/). Notwithstanding this adverse charge of the learned Judge, the prisoner was acquitted. A medical man was tried for the murder of his wife, by the administration of prussic acid. They left their place of residence at Sunderland on a (j) Shorthand Report by Frazer (1817), p. 161. (/) Ibid. p. 170. IN CASES OF POISONING. 337 journey of pleasure to London, where they arrived on the 4th of June, and went into lodgings. On the morning of the 8th, being the Saturday after their arrival in town, the prisoner rang the bell for some hot water, a tumbler and a spoon, and he and his wife were heard conversing in their chamber. About a quarter before eight he called the landlady upstairs, saying that his wife was very ill ; the land- lady found her lying motionless on the bed, with her eyes shut and her teeth closed, and foaming at the mouth. The prisoner said she had had fits before, but none like this, and that she would not come out of it ; and on being urged to send for a doctor, he said he was a doctor himself, that he should have let blood before, but that there was no pulse, that this was an affection of the heart, and that her mother died in the same way nine months before ; and he put her feet and hands in warm water, and applied a mustard plaster to her chest. In the meantime a medical man was sent for, but she died before his arrival. There was a tumbler close to the head of the bed, about one-third full of a clear white fluid, and an empty tumbler on the other side of the table, and a paper of Epsom salts. In reply to a question from the medical man, the prisoner stated that the deceased had taken nothing but a little salts. On the same morning he ordered a grave for interment on the Tuesday following. The contents of the stomach were found to contain prussic acid and Epsom salts ; and it was deposed that the symptoms were similar to those of death by prussic acid, but they might be the effect of any powerful sedative poison, and that the means resorted to by C.E. Z 2^S PROOF OF THE CORPUS DELICTI the prisoner were not likely to promote recovery, but that artificial respiration and stimulants were the appropriate remedies, and might probably have been effectual. The prisoner had purchased prussic acid and acetate of morphine on the previous day, from a vendor of medicines with whom he was intimate ; he had, however, been in the habit of using these poisons, under advice, for a complaint in the stomach. Two days after his wife's death he stated, to the medical man who had been called in, that on the morning in question he was about to take some prussic acid ; that on endeavouring to remove the stopper he had some difficulty, and used some force with the handle of a tooth-brush ; that the neck of the bottle was broken by the force, and some of the acid spilt ; that he placed the remainder in the tumbler, and went into the front room to fetch a bottle in which to place the acid, but instead of doing so, began to write to his friends in the country, when in a few minutes he heard a scream from his wife's bedroom ; that he immediately went to her ; that she exclaimed that she had taken some hot drink, and called for cold water, and that the prussic acid was undoubtedly the cause of her death. Upon being asked what he had done with the bottle, he said he had destroyed it, and assigned as the reason why he had not mentioned the circum- stances before, that he was distressed and ashamed at the consequences of his negligence. According to the opinions of the medical witnesses, after the scream or shriek, volition and sensibility must have ceased, and speech would have been impossible. IN CASES OF POISONING. 339 To various persons in the north of England the prisoner wrote false accounts of his wife's state of health. In one of them, dated from the Euston Hotel, the 6th of June, he stated that she was un- well, and had two medical grentlemen attendinof her, and that he was apprehensive of a miscarriage In another, dated the 8th, he stated that he had had her removed to private lodgings, where she was under the care of two medical men, dangerously ill ; that symptoms of premature labour had come on, and that one of the medical men had pronounced her heart to be diseased. At the date of this letter his wife was cheerful and well, and all these state- ments respecting her health were false ; indeed they had not been to any hotel, but had gone into lodgings on their arrival in London. In a letter dated the 9th, he stated the fact of her death, but without any allu- sion to the cause of it ; which suppression, in a sub- sequent letter, he stated to have been caused by the desire of concealing the shame and reproach of his negligence. His statement to his landlady that his mother-in-law had died from disease of the heart was a falsehood, he himself having certified to the registrar of burials that bilious fever was the cause of her death. The deceased was entitled to some leasehold property, to which the prisoner would be- come entitled absolutely if he survived her, and to a copyhold estate which was limited to the joint use of herself and her husband, so that the survivor would take the absolute interest. The motive sug- gested for the commission of the alleged murder was, that the prisoner might become at once the absolute owner of his wife's property. z 2 340 PROOF OF THE CORPUS DELICTI Mr. Baron Gurney said that this case differed from ahnost every other case he had ever known, in this circumstance, that generally there was a difficulty in ascertaining whether the death had been caused by poison, and whether the poison came from the hands of the person charged with the crime ; but that in this case there could be no doubt that the deceased had come to her death by a poison most certain, fatal, and speedy in its effects, and that it was equally certain that it came from the hands of the prisoner. It had been proved beyond all doubt that the prisoner had bought the poison, and had placed or left it unprotected in the chamber of his wife, and the question was, whether, she having died from poison, it had been administered to her by his hand, or whether he had purposely placed it in her way in order that she might herself take it. The secrets of all hearts were known to God alone, and human tribunals could only judge of those secrets from the conduct of the individual at the time. In this case the jury had the conduct of the prisoner, his words, his writing, his demeanour, proved before them, and it would be for them to decide, upon the whole case, whether they believed he had administered the poison, or placed it within the reach of the deceased in order that she might take it. If he had done either of those things, he would be guilty of murder ; if they thought he had merely acted incautiously and negligently by leaving the poison in the way in which he had left it, he had not been guilty of murder. He dwelt upon the circumstances that the parties had lived for a year and a half together upon terms of mutual affection, that the marriage took place with IN CASES OF POISONING. 34 1 the consent of the lady's mother, with whom they had Hved till her death, that the visit to London was well known to their friends, and that the place to which she was taken was where he had lodged before, and near the residence of the only two persons with whom he was acquainted in London. When any person committed a heinous crime, it was usual and natural, said the learned Judge, to look whether there existed any adequate motive to the commission of it. The prisoner being about thirty, and his wife about twenty-two years of age, it would be a good deal to say that the desire to possess her property should be brought forward as a oreat motive of interest to excite to the com- mission of such a crime. Nevertheless, it was sometimes found, as they could not dive into the heart and ascertain motives, that a grave crime might be committed, although no motive for it could be found. Inasmuch as the great question the jury had to decide was the intention of the prisoner, it should be remembered that a man was entitled to a candid construction of his words and actions, particu- larly if placed in circumstances of great and unexpected difficulty ; and they would take care to give what fair allowance they could in putting a construction upon the prisoner's words and actions. He also laid stress upon the conduct of the prisoner to his wife, and his general good character for kindness. He could not conceive the motive which should have induced the prisoner, in the letter posted on the 6th, when his wife was well and cheerful, to write so complete a fabrication from beginning to end, of her being unwell and attended by two 342 PROOF OF THE CORPUS DELICTI medical mens and the jury would observe that it was written on the very day on which the prisoner had made arrangements for her residence with a friend during his absence abroad. When the letter of the Sth was written did not appear, but it was proved to have been posted on the evening of that day. If it was written before the death, it told against the prisoner. It concurred with the letter written on the 6th, and practised the same deception, as to the two medical men, upon those to whom it was ad- dressed. The defence was, that the prisoner had been guilty of a lamentable indiscretion ; that a sudden event, fatal to his wife, had happened ; that he was overpowered and overwhelmed by the result of his own carelessness, and that he did not like to divulge the truth. The awkward fact, however, was, that in his last letter he had pursued exactly the the same system as that adopted in the letter written two days before. They would recollect, with refer- ence to the letter of the Sth, that on that day he had more than once exclaimed, " This is all my fault." These outbreaks were of some importance for the consideration of the jury in giving, as compared with the letters, all indulgent consideration to any language used by the prisoner, after an event had occurred which placed him in a situation of difficulty and embarrassment. In comparing the statement set up for the defence with the evidence of the medical witnesses, two things w^ere of a good deal of importance. The prisoner's statement was, that when he entered the bed-chamber, his wife told him what had occurred, and that he took the IN CASES OF POISONING. 343 tumbler out of her hand. The medical men had told the jury that with the scream that had been spoken of, all volition and power of speech would cease ; but here it must not be forgotten that the judgment of these gentlemen must be received with this caution, that none of them had ever witnessed the effect of prussic acid on the human frame. It was for the jury to decide whether they were convinced, beyond any reasonable doubt, that the prisoner either adminis- tered, or in effect caused to be administered, poison to the deceased ; if, on the other hand, they should be of opinion that he had been merely guilty of indiscretion, and that, in consequence of the sudden and awful event which had occurred, he had been driven to conceal it by falsehood, they would acquit him. No doubt falsehood often placed persons having recourse to it under awkward and menacing circumstances. In this case, falsehood had been much resorted to. It was shown before the death, in the statement about the two medical men ; that falsehood was followed up and repeated in the second letter ; another false- hood appeared in the representation that his mother- in-law, who had died of bilious fever, as appeared by an entry in the register under his own hand, had died of disease of the heart. If they thought the case conclusive, however painful it might be, it would be their duty to pronounce the prisoner guilty ; but if they thought it left in doubt and mystery, so that they could not safely proceed, they would remember that it was better that many guilty men should escape than that one innocent man should perish. The prisoner was acquitted (u). («) J?e£: V. Belaney^ C. C. C, Sess, Pap., Aug. 1844. 344 PROOF OF THE CORPUS DELICTI Palmer's case is perhaps the most remarkable one of this nature on record. The prisoner who lived at Rufj^eley, had been a medical practitioner, but had given up his profession for the pursuits of the turf, in the course of which he became intimate with a young man named Cook, who was addicted to the same pursuits. By extensive gambling transactions Palmer became involved in great pecuniary diffi- culties, and was ultimately driven to the desperate expedient of borrowing money at exorbitant rates of interest, and to the commission of forgeries on a large scale. In 1855 he was indebted in about p^20,ooo, borrowed at sixty per cent, interest upon bills (all of which bore the forged acceptances of his mother), and secured in part by the assignment of a policy of assurance for ;^ 13,000 on the life of his brother, who died in August of that year. To this source the prisoner had looked for relief from his embarrassments, but the office, having become acquainted with circumstances which mduced them to dispute the validity of the policy on the ground of fraud, declined to pay the sum assured ; and in consequence the holder of some of these bills issued writs against the prisoner and his mother, which were sent into the country, to be served unless he should effect some satisfactory arrangement. Ex- posure, ruin, and punishment thus became imminent, unless some means could be devised of averting the impending disclosures. On Tuesday the 13th of November, Cook and Palmer were at Shrewsbury races, where Cook won between ;^2,ooo and ^3,000, of which he received ;^7oo or ^800 on the course ; the remainder was IN CASES OF POISONING. 345 payable in London on the following Monday (the 19th). He was greatly excited by his success, and the prisoner and several other persons spent the following evening with him, after the conclusion of the races, at his inn in Shrewsbury. In the course of the evening the prisoner was seen in the passage outside his own room, holding up a tumbler to a gas-light ; after which he went, with the tumbler in his hand, into the room where Cook and his other friends were sitting. Soon afterwards, on drinking some brandy and water. Cook became suddenly ill, with violent vomiting, and it was necessary to call in medical assistance. He said he had been dosed by the prisoner, and handed the money he had about him, between ^700 and ;^8oo, to a friend to take care of, who returned it to him the next morning, after his recovery. Notwithstanding these suspicious circumstances, such was the prisoner's influence over his infatuated victim, that Cook returned from Shrewsbury to Rugeley in company with him on the evening of Thursday (the 15th), when, on their arrival, Cook went to his lodgings at the Talbot Arms, and the prisoner to his own house opposite. On the Saturday and Sunday the prisoner called many times to see Cook, who was repeatedly taken sick and ill after taking coffee and broth from the hands of the prisoner On Monday (the 19th) he got up much better , and the prisoner called upon him early in the morning, but did not see him again until eight or nine in the evening, having in the interim, as it turned out, been to London. In the course of that evening Cook's medical attendant, who had previously seen 346 PROOF OF THE CORPUS DELICTI bim, left at the Talbot Arms a box of morphine pills, which was taken into his bedroom by the prisoner, who administered the pills. Shortly afterwards the household was disturbed by screams proceeding from the patient's room. He was found sitting up in bed, in great agony, beating the bed-clothes, gasping for breath, convulsed with a jerking and twitching motion all over his body, and one hand clenched and stiff, but conscious, and calling to those about him to send for the prisoner. In about half an hour the paroxysm subsided, and he became composed. On the next morning (Tuesday the 20th), after taking coffee from the hand of the prisoner, Cook was again affected with violent vomiting, which continued throughout the day ; but in the evening he was better, and in good spirits. About seven o'clock he was visited by his medical at- tendant, whom the prisoner urged to repeat the morphine pills, as on the night before ; and they went together to the surgery, where pills were pre- pared and delivered to the prisoner, who took them away, and went to Cook's room about eleven o'clock, as was intended and supposed, for the purpose of administering them to him ; so that he had the opportunity in the interval of changing them, which there can be no doubt he did. Cook strongly objected to take them, because he had been made so ill the night before ; but his objections were over- come by the prisoner, and at length he swallowed the pills presented to him. Soon after midnight he became ill with the same agonising symptoms as on the preceding night, and again desired that the IN CASES OF POISONING. 347 prisoner should be sent for. Such was the rigidity of his Hmbs that it was found impossible to raise him up, and he asked to be turned over on his side; after which the action of the heart gradually ceased, and in a quarter of an hour he was dead. After death, the body was bent back like a bow, and if it had been placed upon a level surface it would have rested upon the head and heels. Upon receiving information of the young man's death, his step-father, who lived in London, went to Rugeley, arriving on Friday (the 23rd), to make arrangements for his funeral, and to inquire into the state of his affairs, as well as into the circumstances of his illness. On stating to the prisoner that he understood he knew something of his affairs, he was told by the prisoner that there were /4,ooo worth of bills of the deceased's out, to which his (the prisoner's) name was attached, and that he had got a paper drawn up by a lawyer, signed by the deceased, to show that he had never received any benefit from them. The step-father then inquired if there were no sporting debts owing to him, to which the prisoner said there was nothing of the sort ; and on ask- ing about the betting-book, which could not be found, the prisoner said it would be of no use if found, as when a man dies his bets are done with. Other facts now began to turn up throwing a sinister light upon the mysterious events of the last few days. It was discovered that the prisoner had procured three grains of strychnia on the Monday evening, and a second quantity of six grains on the following day ; that he had been seen to search the 348 PROOF OF THE CORPUS DELICTI pockets, and to grope under the pillow and bolster of the unfortunate man before his body was cold ; that although Cook's betting-book was kept on the dressino-table of his bedroom, and was seen there on the previous night, it was never seen after his death ; that the prisoner handed to a friend of the deceased five guineas as the whole of the money that was found belonging to him ; that he had been to London on the Monday, and procured payment of upwards of ^1,000 on account of the wagers won by the deceased at Shrewsbury, and ap- propriated the amount in payment of his own losses, and in part payment of the forged ac- ceptances on which writs had been issued ; that before the races he w^as short of money, and had borrowed ,^'25 ; that he had lost largely at the races, but had subsequently paid considerable sums to various creditors ; that two or three days after Cook's death he had endeavoured to obtain the attestation by an attorney to a forged acknowledg- ment in the name of the deceased that ^4,000 of bills had been negotiated by the prisoner for his benefit ; and, finally, had prevailed upon the medical man who had attended the deceased, who was of a very advanced age, to certify that he had died of apoplexy. A post-mortem examination was made, at which the prisoner was present, and the stomach and intestines were placed m a jar to be taken to London for examination. While the operation was going on, the prisoner pushed against the medical men engaged in it, so as to shake a portion of the contents of the stomach into the IN CASES OF rOISONING. 349 body. The jar was then covered with parchment, tied down, and sealed and placed aside ; and while the attention of the medical men was still engaged in examining the body, the prisoner removed the jar to a distance, near a door not the usual way out of the room, and it was found that two slits had been cut with a knife through the double skin which formed the covering. The prisoner having learned that the jar was to be sent to London the same evening, offered the driver who was to carry the persons in charge of it to the railway station, /^lo to upset the carriage and break the jar. The analytical chemists, to whom the stomach and intestines, and, subsequently, other parts of the body, were sent, found traces of antimony, but none of strychnia, or any other poison ; and sent their report by post, directed to the attorney at Rugeley employed in the investigation. The prisoner incited the post-master to betray to him the contents of this report ; and wrote a confidential letter to the coroner, to whom during the course of the inquiry he sent presents of fish and game, stating that he had seen it in black and white that no strychnia, prussic acid, or opium had been found, and express- ing his hope that on the next day to which the inquest stood adjourned, the verdict would be that of death from natural causes. The coroner's jury found a verdict of wilful murder against the prisoner. Upon tJie trial the chemical witnesses examined on the part of the prosecution stated that the stomach and intestines were received in an unfavourable state for finding strychnia had it been there, inasmuch as the stomach had been cut from end to end, and the 350 PROOF OF THE CORPUS DELICTI contents were gone, and the mucous surface, in which any poison, if present, would naturally be found, had been lyino- in contact with the intes- tines and their succulent contents, and shaken up with them ; that the non-discovery of strychnia did not conclusively prove that death had not been caused by that poison, inasmuch as they had failed to discover it in animals killed for the purpose of experiment ; that if a minimum dose is adminis- tered, it disappears by absorption into the blood ; that it is discoverable, and had been discovered when administered to animals in excess of the quantity required to destroy life, but that there was no known process by which it could be discovered in the tissues, if present there only in a small quantity. On the other hand, witnesses were called on behalf of the prisoner, who disputed the theory of absorp- tion, and stated that strychnia, if present, is always discoverable, not only in the blood and in the stomach and intestines, and their contents, but also in the tissues ; that there was nothing in the con- dition of the parts of the body submitted to examina- tion to preclude the detection of strychnia ; and that, if present, it might have been found, even if it had been administered in a minimum dose, though, on this latter point, there Vv'as some difference of opinion among them. Numerous medical witnesses of the highest pro- fessional experience and character, called on the part of the Crown, deposed that many of the symp- toms, especially in the progress and termination of the attack, were not those of any of the ordinary forms of tetanus, idiopathic or traumatic, or of any IN CASES OF POISONING. 35 1 known disease of the human frame, but were the peculiar characteristics of poisoning by strychnia. Nor were there in these respects any such differences between their opinions and those of many respect- able professional witnesses called on the part of the prisoner, as might not be accounted for by the im- perfect state of knowledge of all the forms of tetanic affection, or by the defects of the physiological and pathological science of the day. Of the numerous professional witnesses examined on behalf of the prisoner, some ascribed the symptoms to tetanic affection ; others to various forms of disease from which they were shown to be clearly distinguish- able ; while others, again, ascribed them to physical causes absolutely absurd and incredible. The con- tradictions and inconsistencies in the testimony of some of the prisoner's scientific witnesses, and their obtrusive zeal and manifest purpose of obtaining an acquittal, deprived it of all moral effect, and drew down upon several of them the severe reprehension of the Court. After a protracted trial of twelve days, the prisoner was found guilty, and was executed pursu- ant to his sentence (x) ; and there is no doubt that this was only one of several murders perpetrated by this great criminal, by the same nefarious means, for the purpose of obtaining money secured by frau- dulent life assurances (y). (.r) C. C. C. 1856, coram Lord Campbell, L.C.J. See Sessions Papers for official shorthand minutes of evidence, also Shorthand Report. iy) See Ann. Reg. 1855 (Chr.), p. 190. The technical nature of the evidence in Smethurst's case (p. 138, supra) would render it inappli- cable in illustration of legal principles, even if doubt had not been thrown upon the verdict by the grant of a pardon. 352 PROOF OF THE CORPUS DELICTI Section 5. APPLICATION of THE GENERAL PRINCIPLE TO PROOF OF THE CORPUS DELICTI IN CASES OF INFANTICIDE. Of the various forms of criminal homicide, that of Infanticide, by which is popularly understood the murder of a recently born infant — committed as it most frequently is for the purpose of concealing its birth — perhaps presents the greatest difficulties in the establishment of the corpus delicti. (i.) In addition to the sources of difficulty and fallacy which are incidental to charges of homicide in general, there are many circumstances of embarrass- ment peculiar to cases of this nature, amongst which must be mentioned the occasional uncertainty and in- conclusiveness of the symptoms of pregnancy (the fundamental fact to be proved), which may resemble and be mistaken for appearances caused by obstruc- tions or spurious gravidity {2). In a remarkable case of imputed murder of an adult female, the suspicion of pregnancy arose principally from the bulk of the deceased while living, coupled with circumstances of conduct which denoted the existence of an improper familiarity between her and the prisoner, and from the discovery, upon post-Diorteni examination, of what was believed by the witnesses for the prosecution to be the placental mark. Four medical witnesses ex- pressed the strongest belief that the deceased had been recently delivered of a child nearly come to maturity ; iz) Rex V. J5<3:/^, Warwick Summer Assizes, 1809, Rex\. Ferguson^ Burnett's Criminal Law of Scotland, p. 574. IN CASES OF INFANTICIDE. 353 while, on the other hand, it was proved that she had been subject to obstructions ; and it was deposed that the appearances of the uterus might be ac- counted for by hydatids, and tliat what was thought to be the phicental mark might be ihe. pediczi/i by which they were attached to the internal surface of the womb {a). The learned Judge said to the jury, that it was a very unfortunate thing that upon every particular point they had to rest upon conjecture ; that it was a conjecture to a certain extent that the deceased was with child, that it was conjecture to a certain degree that any means were used to procure abortion ; and, if they were used, that it was con- jecture that the prisoner was privy to the administra- tion of them. (2.) It must be shown that a child has been born alive, and acquired an independent circula- tion and existence ; it is not enough that it has breathed in the course of its birth {b) ; but if a child has been wholly born, and is alive, and has acquired an independent circulation, it is not material that it is still connected with its mother by the umbilical cord (<:), nor is it essential that it should have breathed at the time it was killed, as many children are born alive and yqt do not breathe for some time after birth {d). (a) Rex V. Angus, Lancaster Autumn Assizes, 1808, coram Chambre, J., Shorthand Report ; and see Burnett's Criminal Law of Scotland, p. 575. {b) Rex V. Poiilton, 5 C. & P. 329 ; Rex v. Etioch, ib. 539 ; Rex v. Crutchley, 7 ib. 814 ; Rex v. Sellis, ib. 856 ; Reg. v. Handle^, 13 Cox, C. C. 79- {c) Reg. V. Reeves, 9 ib. 25 ; Reg. v. Wright, ib. 754 ; Reg. v. Trill oe^ 1 C. & M. 650, {d) Rex V, Braiji, 6 C. & V. 349. C.E. A A 354 TROOF OF THE CORPUS DELICTI Whether a child has been born alive or not is frequently a question of considerable difficulty ; and it is an admonitory consideration, that scientific tests which have been considered as infallible, with the advance of knowledge have been found to be fallacious. Such is the case with respect to the hydrostatic test, from the indications of which in former times many women have suffered the last penalty of the law. On the trial of a woman at Winchester spring assizes, 1835, it was proved that the lungs were inflated, which the medical "witness said would not have been the case if the child had been still-born ; but, in answer to a question from Mr. Baron Gurney, he also said that if the child had died in the birth, thelunors mi^ht have been inflated, upon which the learned Judge stopped the case (e). A single sob, it appears, is sufficient to inflate the lungs, though the child died in the act of birth (/). A young woman was tried before Mr. Baron Parke for the murder of her female child ; the throat was cut, and the wound had divided the right jugular vein ; the lunofs floated in water, and were found on cuttinof them to be inflated ; but it was deposed that this test only showed that the child must have breathed, and not that it had been born alive, and that there are instances of children being lacerated in the throat in the act of delivery. On the close of the case for the prosecution, the learned Judge asked the jury whether they were satisfied that the child was born alive, and that the wound was inflicted by the prisoner (e) Rex V. Simpson, Cummin on the Proof of Infanticide, 40. (/) Rexv. Davidson, Hume's Commentaries on the Criminal Law of Scotland, vol. i., p. 292 (note 3). IN CASES OF INFANTICIDE. 355 with the Intention of destroying life ; as, if they entertained any doubt on these points, it would be unnecessary to go into the evidence on behalf of the prisoner. The jury returned a verdict of acquittal {g). (3.) It Is a further source of uncertainty in cases of this nature that circumstances of presumption frequently adduced as indicative of the crime of murder, may commonly be accounted for by the agency of less malignant motives. Concealment of pregnancy and delivery may proceed even from meritorious motives , as where a married woman resorted to such concealment in order to screen her husband, who was a deserter, from discovery (//). The struggle between the opposing motives of shame and affection must be severe before a mother can contemplate, and still more so, before she can form and execute, the unnatural resolution of taking aw^ay the life of her own offspring. The unfortunate subject of these conflicting motives Is frequently the victim of deceit and treachery, and is almost always deserted by one who was, if not her seduc ^r, at least the partner of her frailty. The world is not lenient In such cases, though scarcely any condition of human weak- ness can be imagflned more calculated to excite the compassion of the considerate and humane (/'). The wisdom and humanity of the legislature, in accordance with the spirit of the times, led, though tardily, to the repeal {k) of the cruel rule of presumption created by (g) Rexw. Groitnnll, Worcester Spring Assizes, 1837. {h) Rex V. Stciuart^ Burnett's Criininal Law of Scotland, p. 572. (/) Hume, see note (_/) supra, vol. i., p. 291. {k) St. 43 Geo. III. c. 58, s. 3. A A 2 356 PROOF OF THE CORPUS DELICTI Statute 21 Jac. I. c. 27, and suggested by a corre- sponding edict of Henry II. of F" ranee, which made the concealment of the birth of an illegitimate child by its mother conclusive evidence of murder, unless she made proof by one witness at least that the child was born dead. The rule too long survived the age in which it originated, and under it many women must have unjustly suffered [I). By the repealing statute the endeavour to conceal the birth of a child by burying, or otherwise secretly disposing of the body, instead of being treated as a conclusive presumption of murder, was made a substantive misdemeanour [m). (4.) The casualties which, even In favourable cir- cumstances, are inseparable from parturition, must be greatly aggravated by the perplexities in- cidental to illegitimate, clandestine, and unassisted birth, from the impulses of shame and alarm, the desire of concealment, the want of assistance and sympathy, and occasionally from the mother's in- ability to render the attentions requisite to preserve infant life ; and there have been cases in which even the very means resorted to, under the terror of the moment, to facilitate birth, have been the unin- tentional cause of death. For these reasons, wounds and other marks of violence are not necessarily considered as indicative of wilful injury, and are not therefore sufficient to warrant a conviction of murder, (/) Hume, see note (/) supra, vol. i., p. 292. {m) See now St. 24 & 25 Vict. c. 100, s. 60. See Russell on Crimes (6th ed.), vol. iii., p. 162, for the history of the legislation upon this subject. IN CASES OF INFANTICIDE 357 unless the concomitant circumstances clearly mani- fest that they were knowingly inflicted upon a body born alive. Nor are these principles of con- struction peculiar to our own law ; it is believed that they prevail generally, if not universally, in the application of the criminal law to cases of this nature (//). It follows from these considerations, that though the facts may justify extreme suspicion that death has been the result of intentional violence, yet if they do not entirely exclude every other hypo- thesis by which it may be reasonably accounted for, sound principles of justice, and a proper regard to the fallibility of human judgment in cases so difficult as these often are, combine to render a conviction for concealment of birth a safer result than a conviction for murder. No one, however, who has seen much of cases of this kind, can have any serious doubt that in many of them there is the strongest suspicion of murder, and one very good reason why concealment of birth should be punish- able is that very often the acts of the mother have rendered it impossible to ascertain whether there has or has not been foul play. It has been thoucjht that in these cases feelincrs of humanity have been permitted to bias the strict course of judicial truth, and that subtle and strained hypotheses have been used to explain circumstances of conclusive presumption. That this does some- («) Alison's Principles of the Criminal Law of Scotland, vol. L, p. 159. 358 PROOF OF THE CORPUS DELICTI times happen cannot be denied, and if so, it is a proof that the law is not in harmony with pubHc feeHng ; but it may be doubted whether in this reproach sufficient weight has always been given to the difficulties inseparably incidental to the proof of this crime. It is, however, well deserving of consideration, whether the ends of public justice and social protection might not be better promoted by the abolition of capital punish- ment in a class of cases in which society will not concur in its infliction, and by the substitution of a minor punishment, not only in the case of conceal- ment of birth, but generally in all cases where death has been caused by the wilful omission of the mo;;her to take the necessary means for the preservation of infant life (o), so as to avoid on the one hand the scandal and ill example of acquittals in the face of convincing evidence of guilt, and on the other, of doing violence to public feeling by capital convictions in the case of a crime which, bad as it is, is nevertheless wanting, as an eminent prelate has remarked, " in all the attributes which distinguish the murder of adults, viz. the wickedness of the motive, the danger to the community, and the feel- ing of alarm and insecurity which it occasions " (/>). (0) See Code Penal d'Autriche, prem. partie, ch. xvi., art. 122, {/>) Whately on Secondary Punishments, p. 108, App. No. 2 ; and see Selections from the Charges, etc., of Mr. Baron Alderson, 78. It might have been supposed that the neglect to take any precaution to preserve the life of the infant would be evidence of manslaughter ; but the practical difficulties in the way of obtaining a conviction for manslaughter, under the circumstances in question, may be said to be insuperable. The neglect must be one occurring after the child has acquired its separate existence, that is, at a time when all the con- siderations in favour of the accused, which are pointed out in the text. IN CASES OF INFANTICIDE. 359 The discussion and illustration of the rules and principles of evidence, in reference to the proof of the corpus delicti, might be extended to an examina- tion of their application to other offences ; but the subject has been sufficiently exemplified for the purposes of this Essay, and such an extended examination would therefore be superfluous. The cases which have been cited strikingly exhibit the strict accordance between judicial practice and the dictates of enlightened reason. operate with their utmost strength. It would not seem unreasonable if the omission to make any preparation for the birth of a child, where that event is foreseen, leading as it constantly does to the death of the child, were to be visited with some minor punishment AMERICAN NOTES. [Note to Chapter VII. ] Corpus Delicti — Meanifig of the Term. Proof of the corpus delicti means proof that the crime charged has actually been committed by some one. The two principal elements are the facts which are the basis of the charge and the criminal agency in bringing those facts into existence. Best on Evidence, § 442 ; Pitts v. State, 43 Miss. 472 ; People v. Palmer, 109 N. Y. 1 13, 4 Am. St. Rep. 477. In People v. Simonsen, 107 Cal. 345, it is said : "The term corpus delicti means exactly what it says. It involves the element of crime. Upon a charge of homicide, producing the dead body does not establish the corpus delicti. It would simply establish the corpus.'' Arson — What is the Corpus Delicti f Carlton v. People, 150 111. 1S6, 41 Am. St. Rep. 346; State v. Jones, 106 Mo. 302. Proof of the Corpus Delicti. Proof of the corpus delicti consists of proof of the fact of death and of the means by which death was produced. One of these being proved, the other may be inferred from circumstantial evi- dence. These circumstances must be wholly inconsistent with the defendant's innocence. People v. Bennett, 49 N. Y. 137. But compare Campbell v. People, 159 111. 9. To establish the corpus delicti in robbery, it is sufficient to show that a person had a sum of money before the event, that he became intoxicated, and was beaten into insensibility, after which his money was gone. Bloomer v. People, i Abb. Dec. 146. Corpus delicti must be proved beyond a reasonable doubt. Norwood V. State, 45 Md. 68. The corpus delicti need not be proved by " overwhelming proof," merely beyond a reasonable doubt. Zell v. Com., 94 Pa. 258. 359 '^ AMERICAN NOTES. In criminal cases the prosecution must prove, first, that an offence has been committed; and, secondly, that it was committed by the accused. U. S. v. Woods, 4 Cranch C. C. 484, Fed. Cas. No. 16760. But although a jury ought to be very sure that a crime has been committed before convicting the accused, the evidence as a whole may leave no reasonable doubt as to the crime or its perpetrator, even though the evidence of the death or of any other material fact may be insufficient when taken alone. Campbell v. People, 159 111. 9; State V. Williams, 52 N. C. 446; Com. v. Johnson, 162 Pa. 63. This is well illustrated in the case of Com. v. Williams, 171 Mass. 461. The defendant was charged with the murder of one Gallo. Gallo's house was burned one night, and Gallo was never again seen, although he had been in the house in the evening before the fire. A body of uncertain sex was found in the remains of the house, and the clasp of a pocket-book like Gallo's near by. The fire effectually concealed all indications of violence, if there had been any. But very early the next morning after the fire, the defendant ar- rived at a town three miles away in a disordered state and stained with blood. He told a story of having been robbed near a pond which he had passed. The vicinity of the pond showed no signs of a struggle, but there were tracks of a running man from Gallo's house to the pond. On the day before the fire, the defendant was penniless and wanting money to go to Klondike. In telling of the robbery he said that he had sent for seventy-five dollars and was glad he had not received it. At nine o'clock on the same morning he said that he had sent for two hundred dollars and expected to hear be- fore Saturday. At ten o'clock he produced a roll of bills, from which he took one of five dollars and spent the greater part of it. On the evening of the same day, after telling different stories to the police, when about to be searched, he produced a roll of fivQ ten dollar and four five doUar bills, which at first he said his brother had sent to him by mail, and then declared that he found by the pond where he was assaulted as he was coming down. Upon an officer pressing him further, he turned very white, perspired, and AMERICAN NOTES. 359"" hardly could speak for a time, but persisted that he found the money as he said. Then the officers searched his room and found very bloody clothing and two secreted twenty-dollar goldpieces, of which at first the defendant denied knowledge, but which after- wards he said he found with the rest. It appeared that Gallo had had three twenty-dollar goldpieces, and some time before had been paid one hundred and nine dollars mostly in ten and five dollar bills. Gallo seemingly had no bank account, and seems to have kept his money as he earned it, except the very small sums which he had to spend for his living. With reference to the question whether a crime had been com- mitted, it should be added that the kerosene can usually kept by Gallo in another place was found in the bedroom, between the body and the place of the bed ; and although we are not attempt- ing to state details, it should be noticed as possibly significant that the defendant, when told that the Italian's shanty was burned and that he was burned in it, answered, " Was he all burned up ? " This evidence was held to be sufficient to warrant the jury in finding that beyond a reasonable doubt Gallo had been murdered and the defendant was guilty of the crime. Proof of Corpus Delicti by Circmjtstantial Ei'ideuce. Circumstantial evidence may be used in establishing the corpus delicti, but in such case the certainty attained must be equal to that attained from direct evidence. State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312 ; State v. Flanagen, 26 W. Va. 116. All that is required is that the corpus delicti be proved beyond a reasonable doubt; the kind of evidence is immaterial. Anderson V. State, 24 Fla. 139; State v. Keeler, 28 Iowa, 551; Brown z/. State, I Tex. App. 154 ; Buel v. State, 104 Wis. 132 ; Campbell V. People, 159 111. 9 ; Com r'. Johnson, 162 Pa. 63. In Reg. 7'. Mockford, 11 Cox C. C. 16, the corpus delicti was established wholly by circumstantial evidence. The defendant was charged with stealing certain chickens, and was convicted, although the owner of the chickens was unable to identify the ones taken or even to say whether any of his chickens were missing. The same was true in State v. Loveless, 17 Nev. 424. where the defendant was convicted of stealing a calf. 359 ^ AMERICAN NOTES. Where the deceased was found lying dead at the foot of a rail- road embankment, it was satisfactorily shown that he was mur- dered, by the facts that his wounds could not have been made by an engine, there was a pool of blood on the track and traces of dragging the body down the embankment, there was a club near bv with which the blows might have been given, and the money the deceased had had was gone. Williams v. State, 6i Wis. 281. To show that arsenic which had caused death was not admin- istered to the deceased by a physician, he may show that he administered the same medicine to others with no ill eftect. Epps V. State, 102 Ind. 539. Blood stains near the place where a murder is alleged to have been committed and stains on articles belonging to deceased and found in possession of the accused are evidence of the corpus delicti. Wilson v, U. S., 162 U. S. 613. The Fact of Death. The fact of the death of one alleged to have been murdered by the accused may be established by circumstantial evidence alone. Johnson v. Com., 81 Ky. 325 ; State v. Winner, 17 Kan. 298. The fact of the killing and death may be proved wholly by cir- cumstantial evidence, but the jury should be warned to weigh it with unusual ■ care. The finding of the corpse may not be necessary. U. S. v. Brown, Fed. Cas. 14, 656 a; U. S. v. Gilbert, 2 Summ. 19, Fed. Cas. 15204; U. S. v. Matthews, Fed. Cas. 15 741 a ; Stocking v. State, 7 Ind. 326. " There is no one dominant part of the case which must be proved as directly as possible in the nature of things before evi- dence of a remoter kind is admissible to connect the defendant with the supposed crime. No doubt the jury ought to be very sure that a crime has been committed before they convict a person of having committed it. But even upon an indictment for murder, the evidence of the death as well as of every other material fact may be insufficient singly, and yet the evidence taken as a whole may leave no reasonable doubt of the crime or of the defendant's guilt. The facts in a circle support one another, when if any one were withdrawn, they would all fall to the ground." Com. V. Williams, 171 Mass. 461. The corpus delicti is not sufficiently proved by the testimony of AMERICAN NOTES. 359 ^ a witness that the defendants tied himself and another, that they struck tiiat other with a sword on the head and stabbed him in the back upon which he fell and had never been seen since. People V. Ah Fung, 1 6 Cal. 137. Where the defendant was charged with the murder of his illegiti- mate child, newly born, the evidence showed that he hung it in a grain sack in a tree where its cries were heard, that afterwards he took it away and it was not again seen. Hdd^ not sufficient proof that the child was dead. People '-. Callego, 133 Cal. 295. After the State has ^\\o\w\ p?-i}iia facie the death of the deceased, it requires the same weight of evidence on the part of the defence to show that the person claimed to be deceased is still alive as to establish an alibi. State v. Vincent, 24 Iowa, 570, 95 Am. Dec. 753. See remarks of Chief Justice Shaw in Cora. v. Webster, 5 Cush. 295, 2)-2>'- "We now come to consider that ground of defence on the part of the defendant which has been denominated, not perhaps witli precise legal accuracy, an alibi ; that is. that the de- ceased was seen elsewhere out of the Medical College after the time when, by the theory of the proof on the part of the prosecu- tion, he is supposed to have lost his life at the Medical College. It is like the case of an alibi in this respect, that it proposes to prove a fact which is repugnant to and inconsistent with the facts constituting the evidence on the other side, so as to control the conclusion, or at least render it doubtful, and thus lay the ground of an acquittal. And the Court are of opinion that this proof is material ; for, although the time alleged in tlie indictment is not material, and an act done at another time would sustain it, yet in point of evidence it may become material ; and in the present case, as all the circumstances shown on the other side, and relied upon as proof, tend to the conclusion that Dr. Parkman was last seen entering the Medical College, and that he lost his life therein, if at all, the fact of his being seen elsewhere afterwards would be so inconsistent with that allegation that, if made out by satisfactory proof, we think it would be conclusive in favor of the defendant." Body of Deceased Need not be Found. Where the body of deceased cannot be found, because lost at sea, other evidence may prove the corpus delicti. U. S. v. Williams, i Cliff. 5, Fed. Cas. 16707. 359/ AMERICAN NOTES. Where it was claimed that the body had been burned, it was shown that certain metallic articles of dress such as deceased had sometimes worn were found in the ashes of a fire. State v. Williams, 52 N. C 446, 78 Am. Dec. 248, Either the body must be found and identified, or criminal acts must be proved sufficient to account for death and the absence of the corpse. Ruloff z'. People, 18 N. Y. 179. To show that the deceased came to his death by drowning at sea, the master of the vessel from which he was missed may testify that he saw no vessels for several days before and after the deceased was missed. St. Clair v. U. S., 154 U. S. 134. Identity of the Body in Homicide. Where the body of the deceased or its identity has been totally destroyed by fire or otherwise, the corpus delicti may be proved by circumstantial evidence. State v. Williams, 52 N. C. 446, 78 Am. Dec. 248. It may be shown by any sort of evidence, if that evidence establishes it beyond a reasonable doubt. Timmerman v. Terr., 3 Wash. T. 445, 17 Pac. 624. The evidence to identify a decomposed body with that of the murdered man was held sufficient where the body corresponded in size, height, and color of the hair, and that the clothing was the same as that worn by deceased. State v. Downing, 24 Wash. 340- In McCulloch v. State, 48 Ind. 109, all that was found of the body of the person alleged to have been murdered was a human skeleton of the size and sex of that individual. This proof with circumstantial evidence of the cause of death and of the identity of the skeleton proved the corpus delicti. The father of the deceased was allowed to testify that he recog- nized the body from the description given by others. Taylor v. State, 35 Tex. 97. Personal Peculiarities. A skull identified by the formation of the teeth and jaws. Gray V. Com., loi Pa. 380. The following circumstances were held sufficient to prove the corpus delicti. A negro boy disappeared when there was no AMERICAN NOTES. 339 ^'* In Johnson v. State (Tex.), 24 S. VV. 285, where defendant was charged with murdering his daughter's child begotten by him, and his defence was that she had never been pregnant, the testimony of the daughter, a doctor, and a mid-wife was sufficient to over- come that of the defendant, his wife, and his son. ;6o FORCE OF CIRCUMSTANTIAL EVIDENCE CHAPTER VIII. OF THE FORCE AND EFFECT OF CIRCUMSTANTIAL EVIDENCE.— CONCLUSION. Section i. GENERAL GROUNDS OF THE FORCE OF CIRCUM- STANTIAL EVIDENCE. In considerinof the force and effect of circum- stantial evidence, the credibility of the testwwny, as distinguished from the credibiHty of \k\^fact, is assumed, since it is a quahty essential to the value of circumstantial, in common with all moral, evidence. Our faith in moral evidence is grounded, as we have seen, upon our confidence in the perma- nence of the order of nature, and in the reality and fidelity of the impressions received by means of the senses which connect us with the external world and with other men ; and upon the laws of our moral and intellectual being, the immutability of moral distinctions, and the authority of con- science {a) ; so that if we could correctly estimate, and were able to eliminate, the various disturbing {a) See Ch. i., section 3, p. 5, supra. GENERALLY. 36 1 influences which tend to divert men from the path of truth and rectitude, our reasonings and conclusions would possess all the force of demonstration. The silent workings, and still more the explosions, of human passion which bring to light the darker elements of man's nature, present to the philoso- phical observer considerations of intrinsic interest ; while to the jurist, the study of human nature and human character with its infinite varieties, especi- ally as affecting the connection between motive and action, between irregular desire or evil disposition and crime itself, is equally indispensable and difficult. No department of inquiry demands more constant watchfulness or more habitual and patient care and thought. The distinct and specific proving power of circum- stantial evidence, as incidentally stated in a former part of this Essay, depends upon its incompatibility with any reasonable hypothesis other than that of the truth of the principal fact in proof of which it is adduced [d) ; so that, after the exhaustion of every other mode of solution, we must either conclude that the accused has been guilty of the fact imputed, or renounce as illusory the results of consciousness and experience, and such know- ledge as we possess of the workings of the human mind {c). Conclusions thus formed are simple inferences of the understanding, aided and corrected by the appli- {b) See Ch. ii., section 3, p. 34, supra. See also Rule 4, p. 262, supra. {c) Tiaite de la Preuve, par Mittermaier, ch. 59. o 62 FORCE OF CIRCUMSTANTIAL EVIDENCE cation of those rules of evidence and those pro- cesses of reason which sound and well-ripened experience has consecrated as the best methods of arriving at truth ; and they constitute that moral CERTAINTY upon which men securely act in other great and important concerns, and upon which they may therefore safely rely for the truth and correctness of their conclusions in regard to those events which fall within the province of criminal jurisprudence. Many continental codes, following the principles of the civil law, prescribe imperative formula; descriptive of the kind and amount of evidence requisite to constitute legal proof. Those principles formerly prevailed in the reception of evidence in the Ecclesiastical and in the Admiralty Courts [d) in this country, so far as to require the testimony of a plurality of witnesess ; but such a restriction has long ceased to be in force. The diversities of individual men render it impracticable thus definitely to estimate the infinite combinations of human motives and actions ; or to fix, with arithmetical exactness, standards of proof which shall operate with unvarying force upon the minds of all men. Such arbitrary rules are not merely harmless, nor simply superfluous ; they are often dangerous to the cause of truth ; they operate as fetters on the con- science of the Judge, obliging him occasionally to determine contrary to his own convictions of truth ; are unnecessary for the protection of the innocent, and effective only for the impunity of the guilty {e). {d) See the preamble to 28 Hen. viii. c. 15. (e) Trait d de la Preuve, par Mittermaier, ch. 8. Cf. pp. 29-31, supra. GENERALLY. 363 A learned Judge of one of our ecclesiastical courts, after commenting on the ancient but now obsolete rule of those courts, that one witness is not sufficient to establish the fact of adultery, said, "To this authority I readily submit, and I am bound to do so ; but I must honestly say that I do it upon compulsion. I am bound by this rule, and so long as it remains a rule of these courts, so long as more evidence is required to prove an act of adultery than to find a man guilty of murder, it will be my duty to obey that rule " {/). The very few cases in which the law of Eng- land requires a particular amount of evidence, as on trials for high treason, where two witnesses are required, and in cases of perjury, where there must be two witnesses, or the testimony of one witness confirmed in some material particular by independent evidence, are grounded upon different principles ; in the former, upon motives of policy, for the protection of persons charged with political crime from becom- ing the victims of party violence ; and in the latter, because mere contradiction by the oath of a single witness has never been considered as of itself sufficient to prove that the accused has been guilty of wilful falsehood, and the old rule has not been altered by Act of Parliament. Since the Criminal Evidence Act, 1898, the same reasoning applies in all cases where the prisoner gives evidence on his own behalf, but has special (/) Per Dr. Lushington, in Taylor v. Taylor^ 6 Eccl. & Mar. Cases, at p. 563. 364 FORCE OF CIRCUMSTANTIAL EVIDENCE force in cases where there is a peculiar risk of false evidence, notably in charges of assaults upon women and children and kindred offences. Female chastity is so highly prized, and is of such social importance, that there is often very great temp- tation to a woman to screen herself by making a false or exaggerated charge, and supporting it with minute details of evidence of a kind, which the female mind seems peculiarly adapted to invent. Unless, therefore, the story of the prosecutrix is corroborated, it becomes a mere question of oath against oath, and although the law does not in these cases technically require corroborative evi- dence, except in certain cases under the Criminal Law Amendment Act (^), judges are in the habit of telling juries that it is not safe to convict the prisoner upon the unsupported statements of the woman or child. In the case of charges by children, there is the additional difficulty that they are constantly too young and too ignorant to have the least appreciation of the gravity of the charge made, and very often to have any moral idea at all ; and it is frequently impossible to apply to their stories the tests by which, to some extent, the (^) 48 & 49 Vict. c. 69, ss. 2, 3, and 4. Corroborative evidence is also required in affiliation proceedings (8 Vict. c. 10, s. 6 ; and 35 & 36 Vict. c. 65, s. 4) and under section 15 of the Prevention of Cruelty to Children Act, 1894 (57 & 58 Vict. c. 41), as well as in actions for breach of promise of marriage. Such actions were, by s. 2, excepted from 14 & 15 Vict. c. 92 which made plaintiffs and defendants in civil suits competent witnesses. The disability of the parties to an action for breach of promise of marriage to give evidence, was removed by 32 & 33 Vict. c. 68, s. 2 ; but the condi- tion was imposed that the evidence of the plaintiff must be corroborated in some material particular. GENERALLY. 365 falsehoods and exaggerations of grown-up persons can be detected, or to tell how far they are relating what happened, or what has been drilled into them by parents or friends. Upon an analogous principle, the evidence of an accomplice requires corroboration. It has been often said that this is not a rule of law, but that it is, nevertheless, the duty of the Judge to insist with juries that they ought not to convict upon the unsupported testimony of an accomplice. To the Editor it has always seemed that if it is the duty of the Judge to tell the jury that they ought not to convict under such circumstances, it should be the duty of the jury to follow what the Judge ought to tell them. He acted upon this view at the Central Criminal Court in an important case {k) in which he withdrew from the jury one of the counts in an indictment upon which there was very clear and unshaken evidence by the accomplice, but nothing else ; and he is informed by Sir Arthur Charles that, in a case tried at Winchester, in which he was, when at the bar, counsel for the prosecution, Mr. Baron Bramwell ruled in the same way, and upon the same grounds ; and, refusing to leave the case to the jury, directed an acquittal where there was no corroboration of the accomplice. If it be proved that a party charged with crime has been placed in circumstances which commonly operate as inducements to commit the act in ques- {h) Reg. V. Wilde, C. C. C, May 1895. The ruling was at the close of the case for the prosecution, and on May 23. 366 FORCE OF CIRCUMSTANTIAL EVIDENCE tion — that he had so far yielded to the operation of those inducements as to have manifested the dis- position to commit the particular crime — that he has possessed the requisite means and opportunities of effecting the object of his wishes— that recently after the commission of the act he has become possessed of the fruits or other consequential advan- tao^es of the crime — if he be connected with the corpus delicti by any conclusive mechanical circum- stances, as by the impressions of his footsteps, or the discovery of any article of his apparel or property at or near the scene of the crime — if there be relevant appearances of suspicion connected with his conduct, person, or dress, and such as he might reasonably be presumed to be able, if innocent, to account for, but which, nevertheless, he cannot or will not explain — if, being put upon his defence recently after the crime, under strong circumstances of adverse presumption, he cannot show where he was at the time of its com- mission — if he attempt to evade the force of those circumstances of presumption by false or incredible pretences, or by endeavours to evade or pervert the course of justice — the concurrence of all or of many of these cogent circumstances, inconsistent with the supposition of his innocence and unopposed by facts leading to a counter-presumption, naturally, reasonably, and satisfactorily establishes the moral certainty of his guilt ; if not with the same kind of assurance as if he had been seen to commit the deed, at least with all the assurance which the nature of the case and the vast majority of human transactions admit. In such circumstances we are GENERALLY. 367 justly warranted in adopting, without reserve, the conclusions to which the mind is naturally con- ducted " by a broad, general, and comprehensive view of the facts, and not relying upon minute circumstances with respect to which there may be some source of error "(?'), and in regarding the application of the sanctions of penal law as a mere corollary. Nor can any practice be more absurd and unjust than that perpetuated in some modern codes, which, while they admit of proof by circum- stantial evidence, inconsistently deny to it its logical and ordinary consequences. Thus the penal code of Austria [k) prohibits the application of capital punishment to the crime of murder, " ou I'inculpe n'est convaincu que par le concours des circon- stances"; but nevertheless the party may be sentenced to an imprisonment of twenty years ; and the same indefensible practice prevails in many other States, though with a considerable diversity as to the maximum penalty (/). How wise and just the emphatic condemnation of the French Papinian : " Ut Veritas, ita probatio, scindi non potest : quai non est plena Veritas est plena falsitas, non semiveritas ; sic, quae non est plena probatio, plane nulla probatio est " (w). if) Per Pollock, L.C.B., in Reg. v. Mannmg and Wife, see pp. 265 and 269, SKpra. {k) Premiere partie, art. 430. (/) See note, p. 32, supra^ and Mittermaier, Traitd de la Preuve, c. 61. (w) Cujas, Cod. t. de Leg., and see Gabriel, 67. 368 FORCE OF CIRCUMSTANTIAL EVIDENCE Section 2. considerations which augment the force of cir- cumstantial evidence in particular cases. Such are the considerations which constitute the force and effect of circumstantial evidence m general \ but there are some collateral considerations which augment the force of circumstantial evidence in particular cases, and greatly increase the strength and security of our convictions, upon which it will be expedient to enlarge. (i.) The most important of these auxiliary con- siderations arises from the concurrence of many or of several separate and independent circumstances pointing to the same conclusion, especially if they be deposed to by unconnected witnesses. In proportion to the number of cogent circumstances, each sepa- rately bearing a strict relation to the same inference, the stronger their united force becomes, and the more secure becomes our conviction of the moral certainty of the fact they are alleged to prove, as the intensity of light Is increased by the concentration of a number of rays to a common focus. It Is forcibly remarked by a learned writer (;2), that " the more numerous are the particular analogies, the greater Is the force of the general analogy resulting from the fuller Induction of facts, not only from the mere accession of particulars, but from the addi- tional strength which each particular derives by («) Bishop Hampden. IN PARTICULAR CASES. 369 b-'Ing surveyed jointly with other particulars, as one among the correlative parts of a system." Although neither the combined effect of the evidence, nor any of its constituent elements, admits of numerical comi)utation, yet with the number of independent circumstances and witnesses, its cogency increases according to a geometrical rather than an arith- metical progression. The effect of a body of circum- stantial evidence is sometimes compared to that of a chain, but the metaphor is inaccurate, since the weakest part of a chain is also its strongest. Such evidence is more aptly to be compared to a rope made up of many strands twisted together. The rope has strength more than sufficient to bear the stress laid upon it, though no one of the filaments of which it is composed would be sufficient for that purpose [o). These remarks are applicable with especial force to the written enumeration of a number of minute facts " multiplying beyond calcu- lation the means of detecting imposture ; serving the purpose of an accuser by hints and allusions only, such as would be found in genuine corre- spondence, not by those clear and positive mani- festations of guilt by which an eager partisan betrays his forgeries " {/>). The increase of force produced by the concurrence of independent circumstances is analogous to that which is the result of the concurrence of several independent witnesses in relating the same fact ; and if these elements admitted of numerical valuation, {6) Reid's Essays on the Intellectual Powers, Essay vii. c. iii. {P) Sir James Mackintosh. C.E. B B 3/0 FORCE OF CIRCUMSTANTIAL EVIDENCE it has been said that their combined effect would be capable of being represented by a fraction, having for its numerator the product of the chances favour- able to the testimony of each witness, and for its denominator, the sum of all the chances, favourable and unfavourable, the unfavourable chances being the product of the several deficiencies of the wit- nesses. Whether the supposed composition of the numerator and denominator is mathematically accurate may be open to question, but the chances would certainly be represented by some such frac- tion. If, however, in such case the witnesses be dependent on each other, so that the testimony of the second depends for its truth upon that of the first, that of the third upon that of the second, and so on, then the effect of the evidence diminishes with every increase in the number of the witnesses or the facts, just as an increase in the denominator of a fraction reduces it to one of inferior value (q). A learned writer has illustrated the subject by a case which at first sight seems an extreme one, and it has occasionally been pressed in argument with much force (r). " Let it be supposed," says he, " that A. is robbed, and that the contents of his purse were one penny, two sixpences, three shillings, four half- crowns, five crowns, six half-sovereigns, and seven sovereigns, and that a person appre- hended in the same fair or market where the rob- bery takes place is found in possession of the same {q) 2 Kirwan's Logic, c. vii. Hartley's Obs. c. Hi. s. 2, prop. LXXX. (r) See the trial of the Rev. Ephraini Avery^ charged with the murder of Sarah Maria Cornell, before the Supreme Court of Rhode Island, May, 1833. (Boston.) IN PARTICULAR CASES. 37 1 remarkable combination of coin and of no other, but that no part of the coin can be identified ; and that no circumstances operate against the prisoner except his possession of the same combination of coin : here, notwithstanding the very extraordinary coincidence as to the number of each individual kind of coin, althouo^h the circumstances raise a high probability of identity, yet it still is one of an indefinite and inconclusive nature " {s). The pro- bability that the coins lost and those discovered are the same is so great, that perhaps the first impulse of every person unaccustomed to this kind of reasoning is to conclude that they certainly are so ; yet, nevertheless, the case is one of probability only, the degree of which is more or less capable of exact calculation ; but if that degree of probability, high as it is, were sufficient to warrant conviction in the particular case, it would be impossible to draw the distinction between the degree of pro- bability which would and that which would not justify the inHiction of penal retribution in other cases of inferior probability. In the case of a small number of coins, two or three for instance, the probability of their identity would be very weak ; and yet the two cases, though different in degree, are in principle the same ; and the chance of identity is in both cases capable to some extent of precise determination. The learned writer adds, that " although the fact taken nakedly and alone, with- out any collateral evidence, would in principle be inconclusive, yet, if coupled with circumstances of a conclusive tendency, such as flight, concealment of {s) Starkie's Law of Evidence (Ed. 1853), p. 854. B B 2 372 FORCE OF CIRCUMSTANTIAL EVIDENCE the money, false and fabricated statements as to the possession, it might afford strong and pregnant evidence of guilt for the consideration of the jury." In like manner it would be difficult to resist the inference of the identity of the coins, if in the case supposed they were scarce or foreign ones. Few facts, however, are absolute or free from qualifying circumstances ; still fewer are capable of numerical estimation. The veracity of witnesses also is generally open to question, and the cases to which this kind of reasoning is applicable, if any such there be, must be very rare. Every attempt to apply such estimation to the combination of facts and probabilities would give a product affected by the same sources of error and uncertainty, as affect its separate elements ; and in all judgments grounded upon circumstantial evidence, this fundamental differ- ence between moral and mathematical certainty must be borne in mind. " It were absurd," declares a philosophical writer, " to say that the sentiment of belief produced by any probability is proportioned to the fraction which expresses that probability ; but it is so related to it, or ought to be so, as to increase when it increases, and to diminish when it diminishes " (/). It is manifest, however, that the effect of the concurrence of many witnesses, and the conjunction of many separate circumstances, is to add greatly to the force of each ; and if the credit of the witnesses be unimpeachable, and the hypo- theses of confederacy and error be excluded, they may lead to an irresistible conviction that the facts (/) 4 Playfair's Works, 437. IN PARTICULAR CASES. 373 to which they relate are true. The case suggested is that of circumstantial evidence in its most cogent form ; and in such case the conclusion to which its various elements converge must often be regarded as morally certain. (2.) Apart from the direct effect of that pro- bability which results from a concurrence of inde- pendent witnesses or circumstances, the security of our judgments is further increased by the con- siderations that, in proportion to the number of such witnesses or circumstances, confederacy is rendered more difficult, and that increased oppor- tunities and facilities are afforded of contradicting some or all of the alleged facts if they be not true. To preserve consistency in a work even professedly of fiction, where all the writer's art and attention are perpetually exerted to avoid the smallest ap- pearance of discrepancy, is an undertaking of no common difficulty: and it is obvious that the diffi- culty must be still greater of preserving coherency and order in a fabricated case which must be sup- ported by the confederacy of several persons, where even a slight variation in any of the minute circum- stances of the transaction or of its concomitants may lead to detection and exposure. On the other hand, though, if the main features of the case do not satis- factorily establish guilt, it is not safe to rely upon very minute circumstances (/^), yet, if the statements of the witnesses are based upon realities, the more rigorously they are sifted the more satisfactory will be the general result, from the development of minute (u) Per Rolfe, B., in Reg. v. Rush, Norfolk Spring Ass. 1849. 374 FORCE OF CIRCUMSTANTIAL EVIDENCE indirect, and unexpected coincidences in the attendant minor particulars of the main event (x). It was happily remarked by Dr. Paley, that " the itndcsioiiedness of the agreements (which unde- signedness is gathered from their latency, their minuteness, their obliquity, the suitableness of the circumstances in which they consist, to the places in which those circumstances occur, and the circuitous references by which they are traced out) demon- strates that they have not been produced by medita- tion or by any fraudulent contrivance. But coin- cidences from which these causes are excluded, and which are too numerous and close to be accounted for by accidental concurrences of fiction, must necessarily have truth for their foundation " (jj'). The same writer also justly remarks, that " no advertency is sufficient to guard against slips and contradictions when circumstances aie multi- plied " (s). Hence it is observed, in courts of justice, that witnesses who come to tell a concerted {x) A remarkable illustration of the truth of this observation occurred within the Editor's experience. He had, in the year 1889, to try at Taunton Assizes a young man named Reyland for murder. After a careful study of the depositions, and a visit to the spot where the murder was committed and the various localities mentioned by the witnesses, he came to the conclusion that it was impossible then to form any opinion as to the guilt or innocence of the prisoner, and that the sohitii n of that question would depend upon a great number of small incidents and facts which had not so far been investigated, but which must be carefully inquired into. If the prisoner was innocent he felt confident the new facts would be in his favour ; if not, they would be against him. In every single instance the new matter elicited was unfavourable to the prisoner. He was convicted and executed, having fully confessed his guilt. See also p. 176, supra. i^y) Paley's Evid., P. ii. c. vii. ; compare Whately's Rhet. p. i. c. ii. s. 4 ; Greenleaf s Law of Evidence, P. I. ch. 3, sections 13 &: 13a. iz) HoriE Paulinae, c i. IN PARTICULAR CASES. 3/5 Story are always reluctant to enter into particulars, and perpetually resort to shifts and evasions to gain time for deliberation and arrangement, before they reply directly to a course of examination likely to bring discredit upon their testimony. It must nevertheless be admitted that history and experience supply abundant evidence that it would be most erroneous in the abstract to decide a matter of fact by the numbers of either witnesses or incidents, and that there have been extraordinary cases of false charges, most artfully and plausibly supported by connected trains of feigned circum- stances. But considering the circumstances of the class of persons liable to be accused of crime — their depriva- tion of personal freedom — their usual lack of friends, of money, and professional aid — their imperfect knowledge of the facts proposed to be proved — their frequent inability to understand how the facts bear upon the question of their guilt or innocence — the alleged facility of disproof is often more imaginary than real. Lord Eldon thus forcibly expressed him- self on this question : " I have frequently thought that more effect has been given, than ought to have been given, in what is called the summing-up of a Judge on a trial, to the fact, that there has not been the contradiction on the part of the defence which it is supposed the witnesses for the accusation might have received. ... It may often happen that, in the course of a trial, circumstances are proved which have no bearing on the real question at issue ; and 3/6 FORCE OF CIRCUMSTANTIAL EVIDENCE it may also happen, that facts are alleged and sworn to by witnesses which it is impossible for the accused party to contradict ; circumstances may be stated by witnesses which are untrue ; yet they may not be contradicted, because the party injured by them, not expecting that that which never had any existence would be attempted to be proved, cannot be prepared with opposing witnesses. So, also, in cases in which an individual witness speaks to occurrences at which no other person was present but himself. There it may be absolutely impos- sible to contradict him " [a). Many of the disadvantages under which prisoners were placed in Lord Eldon's time have been removed or greatly diminished. They now have a ri^/ii to require, upon payment of a reasonable sum, copies of the depositions upon which they were committed or held to bail [d) by a justice of the peace — also of any evidence called on their own behalf (c) ; and this right has been extended to the evidence g-iven before the coroner in cases of committal upon a coroner's inquisition (d). An enforceable legal right to have copies of the evidence proposed to be given at the trial does not exist with regard to evidence dis- covered in the interval between the committal and the trial, or other additional evidence which the prosecution may wish to call ; nor where the indict- ment is found without previous committal. Copies of (a) Hansard's Pari. Deb., New Series (1820), vol. iii. col. 1445. (d) The Indictable OiYences Act, 1848 (11 & 12 Vict. c. 42), following an earlier Act of Will. IV. (c) 30 & 31 Vict. c. 35, s. 3. (^) 50 & 51 Vict. c. 71, s. 18 (5). IN PARTICULAR CASES. 377 all evidence of this character ought to be given to the prisoner, and it was always the subject of very strong comment where this was not done ; but it was decided that the court could not for that reason reject it (t^). It is, however, within the competence of the Judge to express his opinion that the evidence ought not to be given [/) if he thinks its admission unfair ; such an intimation is always attended to, and there is at the present day seldom any foundation for complaint on this score. The provisions of the Vexatious Indictments Act, together with the opportunity every accused person now has of givinor his own evidence on oath, and of affording a full explanation or contradiction of the evidence against him, practically save him trom oppression, and his position, so far as knowledge of the evidence against him is concerned, is much better than that of a defendant in a civil cause, so that the argument founded on the absence of contradictory or explanatory evidence may in many cases, at all events, be now urged with more justice and effect than formerly. There are, however, case* which do not afford any facility of disproof ; where, even admit- ting the truth of the testimony, the supposed pre- sumption of guilt is nothing more than a mistaken conclusion from facts which afford no warrant for the inference of guilt ; in such circumstances, to attempt disproof is to attempt to grapple with a shadow — to require it, to exact an imposs.ibility (^). {e) Reg. V. Connor, i Cox, C. C. 233 ; Reg. v. Gree?isladc, 1 1 Cox C. C. 412. (/) See Archbold's Criminal Pleading, 22nd ed. p. 3845. (o-) Rexv. Looker, pp. 242-244, si^pra ; Rex v. Doivning^ pp. 240- 242, supra ; and Rex v. Thornton., pp. 244-249, supra. Most ^"/S FORCE OF CIRCUMSTANTIAL EVIDENCE (3.) The preceding considerations imply the necessity of consistency and general harmony in the testimony of the different witnesses. All human events must necessarily form a coherent whole ; and actual occurrences can never be mutually inconsis- tent.. If one of two witnesses deposes that he saw an individual at London, and the other that he saw him at York at or near the same precise moment, the accounts are absolutely irreconcileable, and one or other of them must by desion or by inadvertence be untrue. A diversity ought always to excite caution and a careful consideration of the capacity, situation, and disposition of the witnesses, and es- pecially of the possibility of confusion from some mental emotion or defect. "We are frequently mis- taken," said Lord Chief Baron Pollock, *' even as to what we may suppose we see ; and still oftener are we mistaken as to that which we suppose we hear " [/i). Lord Clarendon relates that, in the alarm created by the Fire of London, so terrified were men with their own apprehensions, that the inhabitants of a whole street ran away in a great tumult, upon the rumour that the French were march- ing at the other end of it (/). The same historian has given another anecdote relating to that great calamity, too instructive as applicable to this subject to be omitted. A servant of the Portuouese am- o prisoners, however, must still labour under many difficulties and disadvantages, some of which — such as ignorance and want of means — are practically irremediable. They can only be reduced to a minimum by that ceaseless watchfulness to which every criminal judge should strive to attain. (A) In Heg. V. McDuiing and Wife, C. C. C, Oct. 1849. {£) Life and Continuation, vol. iii. p. 91 (Oxford ed., 1827). IN PARTICULAR CASES. 379 bassador was seized by the populace and pulled about, and very much ill-used, upon the accusation of a substantial citizen, who was ready to take his oath that he saw him put his hand in his pocket, and throw a fire-ball into a house, which immediately burst into flames. The foreigner, who could not speak English, heard these charges interpreted to him with amazement. Being asked what it was that he pulled out of his pocket, and what it was he threw into the house, he answered that he did not think he had put his hand into his pocket, but that he remembered very well that as he walked in the street he saw a piece of bread upon "the ground, which he took up and laid upon a shelf in the next house, according to the custom of his country ; which, observes a learned writer (k), was so strong, that the King of Portugal himself would have acted with the same scrupulous regard to general economy. Upon searching the house, the bread was found just within the door, upon a board as described ; and the house on fire was two doors beyond it, the citizen having erroneously concluded it to be the same; "which," says Lord Clarendon, "was very natural in the fright that all men were in " (/). But variations in the relations by different persons of the same transaction or event, in respect of unimportant circumstances, are not necessarily to be regarded as indicative of fraud or falsehood, provided there be substantial agreement in other respects. True strength of mind consists in not {k) Wooddeson's Lect. on the Laws of England, vol. iii. p. 299. (/) Life and Continuation, vol. iii. p. 87 (Oxford ed. 1827). 380 FORCE OF CIRCUMSTANTIAL EVIDENCE allowing the judgment, when founded upon con- vincing evidence, to be disturbed because there are immaterial discrepancies which cannot be reconciled. When the vast inherent differences in individuals with respect to natural faculties and acquired habits of accurate observation, faithful recollection, and precise narration, and the important influence of intellectual and moral culture, are duly considered, it will not be thought surprising that entire agreement is seldom found amongst a number of witnesses as to all the collateral incidents of the same principal event. Lord Ellenborough said that where there was a general accordance of all material circumstances the credit of the story as a whole was rather confirmed than weakened by minute diversi- ties in the evidence ; that such trivial discrepancies gave it the advantage which belongs to an artless and unartificial tale ; and that minute variances exclude the idea of any uniform contrivance and design in the variation, for where it is an artful and prepared story the parties agree in the minutest facts as well as in the most important (w). " I know not," says Paley, •' a more rash or unphilosophical conduct of the understanding than to reject the substance of a story by reason of some diversity in the circumstances with which it is related. The usual character of human testimony is substantial truth under circum- stantial variety. That is what the daily experience of courts of justice teaches. When accounts of a transaction come from the mouths of different witnesses, it is seldom that it is not possible to pick (;;/) Rex v. Lord Cochraiic and ot/iers, 18 14, Shorthand Report by Gurney, p. 456. See p. 99, supra. IN PARTICULAR CASES. 38 1 out apparent or real inconsistencies between them. These circumstances are studiously displayed by an adverse pleader, but oftentimes with little impression upon the minds of the Judges. On the contrary, a close and minute agreement induces the suspicion of confederacy and fraud " (h). Instances of discrepancy as to the minor attendant circumstances of historical events are numberless. Lord Clarendon relates that the Marquis of Argyle was condemned to be hanged, and that the sentence was performed the same day, Burnet, Woodrow, and Echard, writers of good authority, who lived near the time, state that he was beheaded, though condemned to be hanged, and that the sentence was pronounced on Saturday and carried into effect on the Monday following ({?). Charles II., after his flight from Worcester, has been variously stated to have embarked at Brighthelmstone, and at New Shoreham (/). Clarendon states that the royal standard was erected about six o'clock of the evening of the 25th of August, " a very stormy and tempestuous day " ; whereas other contemporary historians variously state that it was erected on the 22nd and the 24th of that month (1^). By some historians the death of the Parliamentary leader Pym is stated to have taken place in the month of («) Paley's Ev. P. iii. c. i. See Appendix, p. 424, infra. ip) Compare Clarendon's Life and Continuation, vol. ii. p. 266 (Oxford ed., 1827), and Paley's Ev. P. iii. c. i. {p) 6 Hist, of Reb. 541 ; Lingard's Hist, of Eng. vol. xi. c. L p. 98. (jj) 3 Hist, of Reb. 190 ; Rushworth's Collection, part iii. vol. L p. 783 (4th volume) ; Ludlow's Memoirs, p. 17. 382 FORCE OF CIRCUMSTANTIAL EVIDENCE May, 1643 (r); while by others it is said to have occurred in the following year. To come nearer to our own times, the author of a celebrated bio- graphical memoir relates that, after the Rebellion of 1745, three lords were executed at Tower-hill; whereas it is well known that two only underwent that doom, the third, Lord Nithsdale, having by the devotion of his wife effected his escape the night before his intended execution (5). It is remarkable that contemporary and early writers have stated the lady in question to have been his mother. Such discrepancies never excite a serious doubt as to the truth of the principal facts with which they are connected, unless they can be traced to the operation of prejudice or some other sinister motive (/). Still less are mere omissions to be considered as necessarily casting discredit upon testimony which stands in other respects unimpeached and unsus- pected. Omissions are generally capable of ex- planation by the consideration that the mind may be so deeply impressed with, and the attention so riveted to, a particular fact, as to withdraw attention (r) Whitelock's Memorials, 69 ; 4 Hist, of Reb. 436 ; 7 Hume's Hist. 540, ed. i8i8 ; Godwin's Hist, of the Commonwealth, vol. i. p. 16 and footnote. (s) Coxe's Mem. of Walpole, vol. i. p. 73. (/) See in 4 Clarendon's Hist. 436, a remarkable instance 01 historical dishonesty. He states that Pym died of a loathsome disease, morbus pediciilosiis^ evidently with the design of propagating the notion that it was " a mark of divine vengeance " (7 Hume's Hist. 540) ; whereas he must have known that his corpse was exposed to public view for several days before it was interred, in confutation of this calumnious statement. (Ludlow's Memoirs, p. 35.) IN PARTICULAR CASES. 383 from concomitant circumstances, or prevent It from taking note of what is passing. It has been justly remarked that, "upon general principles, affirmative is better than negative evidence. A person de- posing to a fact, which he states he saw, must either speak truly, or must have invented his story, or it must have been sheer delusion. Not so with neofa- tive evidence ; a fact may have taken place in the very sight of a person who may not have observed it ; and if he did observe it, may have forgotten it " (?/). The phenomenon called the Northern Lights not recorded to have been seen in the British is Islands before the commencement of the last cen- tury (,r). Negative evidence is therefore regarded as of little or no weight when opposed to affirmative evidence of credible persons. Sometimes, however, the non-relation of particular facts amounts to the suppressio veri, which in point of moral guilt may be equal to positive mendacity, and destructive of all claim to credit {y). Section 3. cases in illustration of the force of circumstantial evidence. Many remarkable cases of this nature have been given in the preceding pages, in exemplification of {u) Sir Herbert Jenner, in Chambers v. The Queen' s Proctor^ 2 Curt, at p. 434. {x) Whately's Introd. Less, on Christ. Ev. 45. (j) Grafton, who was printer to Queen Ehzabeth, in his Chronicles, pubHshed in 1562, in writing the history of King John, has made no mention of Magna Charta ; perhaps he considered that his silence might be deemed complimentary to that arbitrary princess. 384 FORCE OF CIRCUMSTANTIAL EVIDENCE. some specific doctrine or object ; to these will now be added, as an appropriate commentary upon the discussion of the scientific principles governing the reception and estimate of circumstantial evidence, some striking examples of the force of a cumulation of moral and mechanical facts. (t.) In the autumn of 1786 a young woman, who lived with her parents in a remote district in Kirk- cudbright, was one day left alone in the cottage, her parents having gone out to the harvest field. On their return home, a little after mid-day, they found their daughter murdered, with her throat cut in a shocking manner. The circumstances in which she was found, the character of the deceased, and the appearance of the wound, all concurred in excluding any presumption of suicide ; while the surgeons who examined the wound were satisfied that it had been inflicted by a sharp instrument, and by a person who must have held the instru- ment in his left hand. Upon the body being opened it appeared that the girl was some months gone with child ; and on examination of the ground about the cottage, footsteps were discovered of a person who had seemingly been running hastily from the cottage, by an indirect road through a quagmire or bog in which there were stepping- stones. It appeared, however, that the person, in his haste and confusion, had slipped his foot and stepped into the mire, by which he must have been wet nearly to the middle of the leg. The prints of the footsteps were accurately measured, and an exact impression taken of them ; they appeared CASES IN ILLUSTRATION. 385 to be those of a person who must have worn shoes the soles of which had iron knobs or nails in them — a circumstance common in that part of the country — and had been newly mended. Along the track of the footsteps, and at certain intervals, drops of blood were discovered ; and on a stile or small gateway, near the cottage and in the line of the footsteps, some marks resembling those of a hand which had been bloody. Not the slightest suspicion at this time attached to any particular person, nor was it even suspected who might be the father of the child of which the girl was pregnant. At the funeral a number of persons of both sexes attended, and the Stewart- depute thought it the fittest opportunity of discovering if possible the murderer ; conceiving rightly that, to avoid suspicion, whoever he was, he would not on that occasion be absent. With this view he called together after the interment the whole of the men who were present, being about sixty in number. He caused the shoes of each of them to be taken off and measured ; and one of the shoes was found to resemble, pretty nearly, the impression of the foot- steps near to the cottage. The wearer of the shoe was the schoolmaster of the parish ; which led to a suspicion that he must have been the father of the child, and had been guilty of the murder to save his character. On a closer examination, however, the shoe proved to be pointed at the toe, whereas the impression of the footstep was round at that part. The measurement of the rest went on, and after nearly the whole number had been gone through one shoe at length was found which corresponded C.E. C C 386 FORCE OF CIRCUMSTANTIAL EVIDENCE. exactly with the impression in dimensions, shape of the foot, form of the sole, and the number and position of the nails. William Richardson, the young" man to whom the shoe belonged, on being asked where he was the day the deceased was murdered, replied, seemingly without embarrassment, that he had been all that day employed at his master's work, a statement which his master and fellow-servants, who were present, confirmed. This confirmation so far re- laxed suspicion that a warrant of commitment was not then granted ; but some circumstances occur- ring a few days afterwards having a tendency to excite it anew, the young man was apprehended and lodged in gaol. Upon his examination he acknowledged that he was left-handed ; and some scratches being observed on his cheek, he said he had got them when pulling nuts in a wood a few days before. He still adhered to what he had said of his having been on the day of the murder em- ployed constantly at his master's work, at some dis- tance from the place where the deceased resided ; but in the course of the inquiry it turned out that he had been absent from his work about half an hour (the time being distinctly ascertained) in the course of the forenoon of that day ; that he called at a smith's shop, under the pretence of wanting some- thing, which it did not appear he had any occasion for ; and that this smith's shop was in the way to the cottage of the deceased. A young girl, who was some hundred yards from the cottage, said that about the time the murder was committed (which corresponded with the time that Richardson was CASES IN ILLUSTRATION. 387 absent from his fellow-servants) she saw a person exactly like him in dress and appearance running hastily toward the cottage, but did not see him return, though he might have gone round by a small eminence which would intercept him from her view, and which was the very track where the foot- steps had been traced. His fellow-servants now recollected that in the fore- noon of that day they were employed with Richard- son in driving their master's carts ; and that when passing by a wood, which they named, he said that he must run to the smith's shop and would be back in a short time. He then left his cart under their charo-e ; they waited for him about half an hour (which one of the servants ascertained by having at the time looked at his watch), and remarked on his return that he had been longer absent than he said he would be, to which he replied that he stopped in the wood to gather some nuts. They observed at this time one of his stockings wet and soiled, as if he had stepped into a puddle ; on which they asked where he had been. He said he had stepped into a marsh, the name of which he mentioned ; on which his fellow- servants remarked, " that he must have been either mad or drunk if he had stepped into that marsh, as there was a footpath which went along the side of it." It then appeared, by comparing the time he was absent with the distance of the cottage from the place where he had left his fellow-servants, that he might have gone there, committed the murder, and returned to them. A search was then made for the stockings he had worn that day, which were found concealed in the thatch of the apartment c c 2 2,SS FORCE OF CIRCUMSTANTIAL EVIDENCE. where he slept, and appeared to be much soiled, and to have some drops of blood on them. He accounted for the blood by saying, first, that his nose had been bleeding some days before ; but it beincr observed that he had worn other stockintrs o r? on that day, he said he had assisted in bleeding a horse ; it was proved, however, that he had not done so, but had stood at such a distance that the blood could not have reached him. On examininof the mud or sand upon the stockings, it was found to correspond precisely with that of the mire or puddle adjoining to the cottage, which was of a very particular kind, none other of the same kind being found in that neighbourhood. It then came out that Richardson had been acquainted with the deceased, who was considered in the county as of weak in- tellect, and had on one occasion been seen with her in a wood, in circumstances that led to a suspicion that he had had improper intercourse with her ; and on being taunted with having such connection with one of her condition, he seemed much ashamed and greatly hurt. It was proved by the person who sat next to him when his shoes were being measured, that he trembled, and seemed much agitated ; and that in the interval between that time and his being apprehended he had been advised to t\y, but his answer was, "Where can I fly to .-^ " On the other hand, evidence was brought to show that, about the time of the murder, a boat's crew from Ireland had landed on that part of the coast, near to the dwelling of the deceased ; and it was said that some of the crew might have committed CASES IN ILLUSTRATION. 389 the murder, though their motives for doing so it was difficult to explain, it not being alleged that robbery was their purpose, or that anything was missing from the cottages in the neighbourhood. The prisoner was tried at Dumfries, in the spring of 1787, and the jury by a great plurality of voices found him guilty. Before his execution he con- fessed that he was the murderer ; and said it was to hide his shame that he committed the deed, knowing that the girl was with child by him. He mentioned also to the clergyman who attended him, where the knife would be found with which he had perpetrated the murder ; and it was found accord- ingly in the place he described, under a stone in a wall, with marks of blood upon it {2). The casual discovery of circumstances which indicated the existence of a powerful motive to commit the deed — the facts, that it had been com- mitted by a left-handed man, as the prisoner was (a circumstance which narrowed the range of in- quiry) and that there was an interval of absence which afforded the prisoner the necessary oppor- tunity of committing the crime ; his false assertion that he had not been absent from his work on that day (contradicted as it was by witnesses who saw him on the way to and in the vicinity of the scene of the murder) amounting to an admission of the relevancy and weight of that circumstance if uncon- (z) Rex V. Richardson, Burnett's Criminal Law of Scotland, p. 524. This case is also concisely stated in Lockhart's Memoirs of the Life of Sir Walter Scott (iv, 52, 2nd ed. 1S39); and it supplied one of the most striking incidents in " Guy Mannering." 390 FORCE OF CIRCUMSTANTIAL EVIDENCE. tradicted ; the discovery of his footsteps near the spot ; his agitation at the time of the measure- ment and comparison of his shoes with the impres- sions ; the discovery of his secreted stockings, spotted with blood, and soiled with mire peculiar to the vicinity of the cottage ; the scratches on his face ; his various untrue statements — all these particulars combine to render this a most satisfactory case of conviction, and to exemplify the high degree of assurance which circumstantial evidence is capable of producing. (2.) A man named Patch was tried for the murder of Mr. Isaac Blight, a ship-breaker, near Greenland Dock, Mr. Blight had taken the prisoner into his service in the year 1803. In July 1805, having become embarrassed in his circum- stances he entered Into a deed of composition with his creditors ; and in consequence of the failure of this arrangement made a colourable transfer of his property to the prisoner. It was afterwards agreed between them, that Mr. Blight was to retire nominally from the business, which the prisoner was to manage ; Blight was to have two-thirds of the profits, and the prisoner the remaining third, for which he was to pay ^1,250. Of this amount, ^250 was paid in cash, and a draft, upon a person named Goom, was given for the remainder, which would become payable on the 1 6th of September ; the prisoner representing that he had received the purchase-money of an estate and lent it to Goom. On the 1 6th of September the prisoner represented to Mr- Blight's bankers that Goom could not take CASES IN ILLUSTRATION. 39 1 up the bill, and withdrew it, substituting his own draft upon Goom, to fall due on the 20th of September. On the 19th of September Mr. Blight went to visit his wife at Margate, and the prisoner ac- companied him as far as Deptford, and then went to London, and represented to the bankers that Goom would not be able to face his draft, but that he had obtained from him a note which satisfied him, wherefore they were not to present it. The prisoner boarded in Mr. Blight's house, and the only other inmate was a female servant, whom, about eight o'clock on the same evening (the 19th), he sent out to procure some oysters for his supper. During her absence a gun or pistol ball was fired through the shutter of a parlour fronting a wharf beside the Thames, where the family, when at home, usually spent their evenings. It was low water, and the mud was so deep that any person attempt- ing to escape in that direction must have been suffocated ; and a man who was standing near the gate of the wharf, which was the only other mode of escape, heard the report, but saw no person. From the manner in which the ball had entered the shutter, it must have been discharged by some person who was close to the shutter ; and the river was so much below the level of the house, that the ball, if it had been fired from thence, must have reached a much higher part than that which it struck. The prisoner declined the offer of the neigh- bours to remain in the house with him that night. On the following day he wrote to inform Mr. Blight of this transaction, stating his hope that the shot had 392 FORCE OF CIRCUMSTANTIAL EVIDENCE. been accidental, that he knew of no person who had any animosity against him, that he wished to know for whom it was intended, and that he should be ha[)py to hear from him, but much more so to see him. Mr. Blight returned home on the 23rd of Septem- ber, having previously been to London to see his bankers on the subject of the ^1,000 draft. Upon eettinof home, the draft became the subject of con- versation, and Mr. Blight desired the prisoner to go to London and not to return without the money. Upon his return from London the prisoner and Mr. Blight spent the evening in the back parlour, a different one from that in which the family usually sat. About eight o'clock the prisoner went from the parlour into the kitchen, and asked the servant for a candle, complaining that he was disordered. The prisoner's way from the kitchen was through an outer door which fastened by a spring lock, and across a paved court in front of the house, which was enclosed by palisades, and through a gate over a wharf, in front of that court, on which there was the kind of soil peculiar to premises for breaking up ships, and then through a counting-house. All of these doors, as well as the door of the parlour, the prisoner left open, notwithstanding the state of alarm excited by the shot. The servant heard the privy-door slam, and almost at the same moment saw the flash of a pistol at the door of the parlour where the deceased was sitting, upon which she ran and shut the outer door and gate. The prisoner immediately after- wards rapped loudly at the door for admittance, with his clothes in disorder. He evinced great apparent concern for Mr. Blight, who was mortally CASES IN ILLUSTRATION. 393 wounded and died on the following day. From the state of the tide, and from the testimony of various persons who were on the outside of the premises, no person could have escaped from them. In consequence of this event Mrs. Blight returned home, and the prisoner, in answer to an inquiry about the draft which had made her husband so uneasy, told her that it was paid, and claimed the whole of the property as his own. Suspicion soon fell upon the prisoner, and in his sleeping-room was found a pair of stockings rolled up like clean stockings, but with the feet plastered over with the sort of soil found on the wharf, and a ramrod was found in the privy. The prisoner usually wore boots, but on the even- ing of the murder he wore shoes and stockings. It was supposed that, to prevent alarm to the deceased or the female servant, the murderer must have approached without his shoes, and afterwards gone on the wharf to throw away the pistol into the river. All the prisoner's statements as to his pecuniary transactions with Goom and his right to draw upon him, and the payment of the bill, turned out to be false. He attempted to tamper with the servant-girl as to her evidence before the coroner, and urged her to keep to one account ; and before that officer he made several inconsistent statements as to his pecuniary transactions with the deceased, and equivocated much as to whether he wore boots or shoes on the evening of the murder, as well as to his ownership of the soiled stockings, which how- ever were clearly proved to be his, and for the soiled state of which he made no attempt to account. The prisoner suggested the existence of malicious feelings 394 FORCE OF CIRCUMSTANTIAL EVIDENCE. in two persons with whom the deceased had been on ill terms ; but they had no motive for doing him any injury, and it was clearly proved that upon both occasions of attack they were at a distance. The prisoner's motive was to possess himself of the business and property of his benefactor ; and to all appearance his falsehoods and duplicity were on the point of being discovered. His apparent incau- tion on the evening of the murder could be ac- counted for after the preceding alarm by no other supposition than that it was the result of premedita- tion, and intended to afford facilities for the execu- tion of his dark purposes. The direction of the first ball through the shutter excluded the possi- bility that it had been fired from any other place than the deceased's own premises ; and by a singular concurrence of circumstances, it was clearly proved that no person escaped from the premises after either of the shots, so that suspicion was necessarily restricted to the persons on the premises. The occurrence of the first attack during the tem- porary absence of the servant (that absence con- trived by the prisoner himself) ; the discovery of a ramrod in the very place where the prisoner had been, and of his soiled stockings folded up so as to evade observation ; his interference with one of the witnesses ; his falsehoods respecting his pecuniary transactions with Goom and with the deceased ; and his attempts to exonerate himself from suspicion by implicating other persons — all these cogent cir- cumstances of presumption tended to show not only that the prisoner was the only person who had any motive to destroy the deceased, but that the CASES IN ILLUSTRATION. 395 crime could have been committed by no other per- son ; and while all the facts were naturally expli- cable upon the hypothesis of his guilt, they were incapable of any other reasonable solution. The prisoner was convicted and executed [a). (3.) A respectable farmer, who had been at Stour- bridge market on the i8th of December, 181 2, left that place on foot a little after four in the afternoon, to return home, a distance of between two and three miles. About half a mile from his own house he was overtaken by a man who inquired the road for Kidderminster ; and they walked together for two or three hundred yards, when the stranger drew behind and shot him in the back, and then robbed him of about eleven pounds in money and a silver watch. After lingering ten days, he died of the wound thus received. The wounded man noticed that the pistol was long and very bright, and that the robber had on a dark-coloured great-coat, which reached down to the calves of his legs. Several circumstances of correspondence with the description given by the deceased conspired to fix suspicion upon the prisoner who for about four- teen months had worked as a carpenter at Ombersley, seventeen miles from Stourbridge. It was discovered that he had been absent from that place from the 17th to the 22nd of December ; that on the 23rd he had taken two boxes, one contain- ing his working tools and the other his clothes, to Worcester, and there delivered them to a carrier, (a) Surrey Spring Ass. 1806, coram Macdonald, L.C.B. Shorthand Report by Gurney. 396 FORCE OF CIRCUMSTANTIAL EVIDENCE. addressed to John Wood, at an inn in London, to be left till called for, the name by which he was known being William Howe ; and that on the 25th he finally left Ombersley, and went to London. Upon inquiry at the inn to which the boxes were directed, it was found that a person answering the description of the prisoner had removed them in a mealman's cart to the Bull in Bishopsgate Street, and that on the 5th of January they had been re- moved from thence in a cooper's cart. Here all trace of the boxes seemed cut off; but on the 12th of January the police officers succeeded in tracing them to a widow woman's house, in a court in the same street ; when, upon examining the box which contained the prisoner's clothes, they found a screw- barrel pistol, a pistol-key, a bullet-mould, a single bullet, a small quantity of gunp(ywder in a cartridge and a fawn-skin waistcoat ; which latter circum- stance was important, as the prisoner was seen in Stourbridge on the day of the murder, dressed in a waistcoat of that kind. By remaining concealed in the woman's house the police were enabled to apprehend the prisoner, who called there the follow- ing night. Upon his apprehension, he denied that he had ever been at Stourbridge, or heard of the deceased being shot ; and he accounted for chang- ing his name at Worcester by stating, first, that he had had a difference with his fellow work-people, and afterwards that he did it to prevent his wife, whom he had determined to leave, from beini^ able to follow him. On beingr asked where he was on the 1 8th of December, he said he believed at CASES IN ILLUSTRATION. 397 Kidderminster, a town about six miles from Stour- bridge. Upon the prisoner's subsequent examina- tion before the magistrates, he stated that he was at Kidderminster on the 17th of December, and at Stourbridge on the i8th (the day of the murder), but that he was not out of the latter town from the time of his arrival there, at one o'clock in the after- noon until half-past seven the following morning; that in the afternoon he went to look about the town for lodgings, and ultimately went to his lodgings about six o'clock in the evening. The account which the prisoner thus gave of himself was proved to be a tissue of falsehoods. lie had been seen by several witnesses between four and five in the afternoon of the day in question, on the road leading from Stourbridge toward, and not far from, the spot where the deceased was shot, and about half-past five he was seen going in great haste in the opposite direction, toward Stourbridge. He afterwards called at two public-houses at Stour- bridge — at the first of them about six o'clock, and at the other about nine the same evening ; at both of which the attack and robbery were the subjects of conversation, in which the prisoner joined ; and he was distinctly spoken to as having worn a fawn- skin waistcoat. On the 21st of December the prisoner sold at Warwick a watch of which the deceased had been robbed, stating it to be a family watch. A letter was sent by the prisoner while in gaol to his wife : she being unable to read, had got a neighbour to read it to her. It contained a direction to remove some thinors concealed in a rick near Stourbridge ; where, upon search being 398 FORCE OF CIRCUMSTANTIAL EVIDENCE. made, were discovered a glove, containing three bullets, and a screw-barrel pistol, the fellow to that found in the prisoner's box. A gunmaker deposed that the bullet extracted from the wound had been discharged from a screw-barrel pistol, such as that produced, and that that bullet and the bullet found in the prisoner's box had been cast in the same mould. The prisoner's denial, on his apprehension, that he had ever been at Stourbridge, or heard of the act, denoted a consciousness of the fatal effect of any evidence tending to establish the fact of his presence there. The discovery of a fawn-skin waistcoat in his possession, corresponding with that worn by him when seen at Stourbridge on the evening of the murder ; his possession and dis- posal of the deceased's watch within three days after the robbery ; his false statement that it was a family watch ; the correspondence between the weapon found in the rick and that found in the prisoner's box, and between the bullet extracted from the wound and that found in the same box, and the peculiarity that the deceased had been killed by a wound from a screw-barrelled pistol — all these cir- cumstances placed the guilt of the prisoner beyond any reasonable doubt, and there was no possibility of referring them to casual and accidental coinci- dence, or of explaining them upon any hypothesis compatible with his innocence. He was convicted, and before his execution confessed his guilt {p). (4.) A foreigner, named Courvoisier, was tried at the Central Criminal Court (June 1840) for the {b) Rex\. William Howe^ Stafford Spring Ass. iSi^,cora;/i Bay ley, J, CASES IN ILLUSTRATION. 399 murder of Lord William Russell, an elderly man, seventy-five years of age, a widower, who lived in Norfolk Street, Park Lane. The deceased's house- hold consisted of the prisoner, who had been in his service as valet about five weeks, and of a house- maid and cook who had lived with him three years, besides a coachman and groom who did not live in the house. On the 6th of May the female servants went to bed as usual, and the housemaid on going to bed lighted a fire and set a rush-licrht in her master's bedroom, which presented its usual appear- ance ; the prisoner remained sitting up to warm his bed. The housemaid rose about half-past six on the following morning, and on going downstairs knocked, as usual, at the prisoner's door. At her master's door she noticed the warming-pan, which was usually taken downstairs ; on going into a back drawinof-room she found the drawers of her master's desk open and his bunch of keys lying on the carpet ; a screw-driver lay on a chair. In the hall his Lord- ship's cloak was found neatly folded up, together with a bundle, containing a variety of valuable articles, most of them portable, such as a thief would ordinarily put in his pocket instead of de- liberately packing up. In the dining-room she found several articles of plate scattered about. The street-door, though shut, was unfastened, but the testimony of the police who passed the house many times in the night rendered it very unlikely that any person had left it in that direction. Alarmed by these appearances, the housemaid called the prisoner, and found him dressed, though only a few minutes had elapsed since she had 400 FORCE OF CIRCUMSTANTIAL EVIDENCE. knocked at his door — a much shorter time than he usually took to dress. They went together down- stairs ; and after examining the state of the dining- room and the prisoner's pantry, where the cupboard and drawers were all found opened, they proceeded to their master's bed-room, where he was found with his throat cut, in a manner which must have produced instant death. His Lordship usually placed his watch and rings on his dressing-- table ; but they had been taken away, and his note-cases, in one of which the prisoner stated that he had seen a ;^io and a ^5 note a few days before, were open and emptied of their contents. A book was found on the floor, and his Lordship's spectacles lay upon it, and there was a candlestick about four or five feet from the bed, with the candle burned to the socket. These articles appeared to have been so placed to create the impression that his Lordship had been murdered while reading ; but he was not accustomed to read in bed, and only so much of the rush-light was burned as would have been consumed in about an hour and a half, thouo^h the candle was completely burned away. The prisoner stated that he left his master reading. Upon the door of the prisoner's pantry, leading to a back area, were marks as if it had been broken into, and the prisoner suggested that the thieves had entered by that door ; but the marks appeared to have been made from within, and none of them had been made by the application of sufficient force to break open the door ; the bolts appeared not to have been shot at the time, and the socket of one of them had been wrenched off when the door was open. The marks CASES IN ILLUSTRATION. 4OI on this door appeared to have been made with a bent poker found in the pantry. It was clear that no person had entered the premises from the rear, since, in one direction, they could have been ap- proached only by passing over a wall covered with dust, which would have retained the slightest im- pression ; and in the other, anyone must have passed over some tiling which was so old and perished as necessarily to have been damaged by the passing of any person over it ; while from the testimony of the police it was equally clear that no person had escaped through the front door. For several days the missing articles could not be found, and the case appeared to be wrapped in impenetrable mystery ; but at length, upon a stricter search, his Lordship's rings and Waterloo medal, five sovereigns, and a ;^io note, the latter of which had been removed from his note-case, were found concealed behind the skirting-board in the prisoner's pantry ; and beneath the leaden covering of a sink was found his Lordship's watch, and several other articles were also found in other parts of the same room. But a quantity of plate which had been stolen still remained undiscovered, notwithstanding the most diligent efforts to discover it ; and its non- production was the only circumstance which gave any apparent countenance to the possibility that the house had been robbed on the night of the murder, by parties who had escaped. The mystery was cleared up however in a remarkable manner, during the progress of the trial. About a fortnight before the murder, the prisoner had left a parcel in the care of an hotel-keeper with whom he had formerly lived C.E. D D 402 FORCE OF CIRCUMSTANTIAL EVIDENCE. as waiter, whose curiosity was aroused by reading in a newspaper a suggestion that, as the prisoner was a foreigner, he had probably left the plate at one of the foreign hotels in London. He communicated with the police, and the parcel was o})ened and found to contain the missing plate. The prisoner had been known in this situation only by his Christian name ; this circumstance accounted for the fact that sus- picion had not been sooner excited by the narrative ofthemurder and robbery which had appeared in the daily journals. This discov^ery, in conjunction with the simulated appearances of external violence and robbery, and the conclusive evidence that the premises had not been entered from without, made it certain that the robbery of the plate and the murder had been committed by one of the inmates ; while the manner and place of concealment, and the artless and satisfactory account given by the female servants, rendered it equally clear that the prisoner and he alone could have been the murderer. He made a confession of his guilt, and was exe- cuted pursuant to his sentence {d). (5.) Perhaps one of the most extraordinary civil causes, in which the truth has been made manifest by the force of circumstantial evidence, was " The Great Matlock Will Case " (e), tried before Lord Chief Justice Cockburn in February 1864. The history of the litigation is somev.^hat remarkable. It related to the validity of three codicils to a will of one George (d) Sessions Papers, 1840 ; 2 Townsend's Modern State Trials, 244. (e) Cresswell a?id others v. Jncksoti and another ; contemporaneous report published in 1864, Derby, Richard Keene. The Editor of the present volume was one of the counsel in the case. CASES IN ILLUSTRATION. 403 Nuttall, and a suit was instituted in Chancery to establish them. An issue was directed by the Master of the Rolls (y), in which the plaintiffs asserted and the defendants denied that the codicils were genuine. It came on for trial in the first instance before Lord Chief Justice Erie, at the Derby summer assizes in 1859, when the jury pronounced in favour of the codicils. Not being satisfied with the verdict, the Master of the Rolls directed a second trial, which took place before Lord Chief Baron Pollock, at the Derby spring assizes i860, when the jury found against the codicils. The Master of the Rolls was satisfied with this verdict, and refused a new trial. Application was made to the Lords Justices, who were divided in opinion. Lord Justice Turner being in favour of, and Lord Justice Knight Bruce against, granting a new trial. The plaintiffs appealed to the House of Lords. The case was heard by three of the Law Lords. The Lord Chancellor (Lord Cranworth) and Lord Wensleydale were of opinion that a third trial was desirable, Lord Chelmsford was of the contrary opinion. Accordingly, the application for a new trial was granted, and the trial was ordered to take place before the Lord Chief Justice of England (Sir Alexander Cockburn) and a special jury of the City of London. The case was begun on the 2 2 nd of February 1 864, and lasted eight days. It resulted in a verdict— not afterwards dis- turbed, although a motion was again made for a new trial — for the df^fendants. The testator, George Nuttall, lived and died a bachelor at Matlock, and was possessed of real (/) Sir John Romilly. D D 2 404 FORCE OF CIRCUMSTANTIAL EVIDENCE. and personal estate worth in the aggregate some- where about ^60,000. He was a land surveyor, and had been in good practice, and though not of scholarly education, was very intelligent, widely self-instructed and an excellent man of business. He lived a somewhat secluded life, and had no near or intimate relations. The only person besides himself who lived in the house was Catherine Marsden his housekeeper. Her sister was the wife of John Else, who as the person chiefly benefiting by the codicils figures largely in this story. Else also lived at Matlock, and was assistant-overseer and County Court bailiff there. He was in a great measure brought up by the testator, and from boy- hood had been employed to do writing and copying for him. The testator had two styles of handwrit- ing, a free and running hand, like that of an edu- cated man, and a more formal and clerk-like hand. Else's writing so closely resembled Mr. Nuttall's more formal hand that persons who were in the habit of corresponding upon business matters with Mr. Nuttall were often unable to tell whether he or Else had written the body of a letter. The testator died on the 7th of March 1856. His will had been drafted by his attorney, Mr. Newbold, and had been copied out by his own hand in dupli- cate. Immediately after his death, one of these holo- graph copies was found in a cupboard in his room. It was dated 15th September 1 854, and under it John Nuttall, a distant cousin of the testator, took the bulk of the real estate, and was residuary legatee of the personalty. Amongst many gifts was one to Catherine Marsden of the house for life, of the CASES IN ILLUSTRATION. 405 furniture, and of £200 a year. To Else was left tithe property, which, after making allowance for certain charges, amounted to about ^140 a year. On the day of the funeral a further search was made in the cupboard, whereupon a second holograph copy of the will was found in a packet sealed and marked " This is my rigt [sic] will." This duplicate bore the same date as the will first found, and was similar to it in every particular, except that the duplicate had an interlineation by which Else was to have a charge of ^100 per annum, and Catherine Marsden a charge of ^50 per annum, upon some property ofiven to another lecfatee. This interlineation was the first of the imputed forgeries, and became a very important factor in the case. It was, however, inoperative in itself, inasmuch as it was not initialled by the attesting witnesses nor noticed in the attesta- tion clause. In April 1856 Mr. Newbold asked John Else for a voucher for some account which had been paid. A mass of the testator's papers had been conveyed to Else's house ; amongst them, search being made for the voucher, Else asserted that he found the first codicil dated the 27th of October 1855. It was gummed up in an envelope which contained, besides the codicil, an epitome, upon half a sheet of note-paper, of the will and first codicil. The epitome, so far as it related to the will, was undoubtedly genuine. So also was an erasure of a devise to S. H. (Sarah Holmes) who had died in February 1855. The rest, relating to the first codicil, was alleged to be a forgery. The effect of this codicil was to revoke a devise in the will, and to give property 406 FORCE OF CIRCUMSTANTIAL EVIDENCE. worth about /^550 a year to Else, subject to four annuities of /"20 each to four brothers of Catherine Marsden. An annuity of /50 a year was given to Mr. Ncwbold ; there was also a devise to a son of Mr. Ncwbold of the property which under the will was left to Sarah Holmes, and further dispositions in favour of Catherine Marsden. Ei. alibi, 272 r. BURGLAR'S TOOLS, possession of, 154;;*, 202/. BURGLARY, possession of the stolen goods, 154/*. possession of tools, 202 1. c. CAPACITY TO COMMIT CRIME, 203. See Insanity. CAPITAL PUNISHMENT, Austrian code, 367. CATTLE BRANDS, 202;'. CAUSE OF DEATH, proof of, 291, 359//, 359''- See Corpus DELICTI. CHARACTER OF ACCUSED, 226, 237 ^*, 237^'*. particular facts, 229, 237 h*. of deceased to show self-defence. 237 h. of third persons, 237 /. 430 INDEX. (Numbers refer to pages.) CHARACTER OF ACC\J ^ILU — Conthuud. of prosecutrix in rape, 20S, 237 /. weight of, as evidence, 237 c*. not disposition. 237//*. Webster's trial, 359/. CHARACTERISTICS of circumstantial evidence, 19, 46 «. CHASTITY, reputation for, 208, 237 t. particular acts, 237 n. proof of, 272 /, 272 s. CHEMICAL ANALYSIS, in poisoning cases, 310, 359 2-, 359 /;*. CIRCUMSTANCES, to be clearly proved, 238, 272 a. burden of proof, 255. must be incapable of explanation except by guilt, 262, 272 e. concurrence of many, 368, 422 d. inconsistency of, 379. weight of, as basis for inference, 422 a. CIRCUMSTANTIAL EVIDENCE, to prove other circumstances, 18^. too remote, 187'. essential characteristics, 19, 46 «. relative value of, 34, 46 e. compared with direct, 34, 46 e. sources and classification of, 43, 46 /. fallibility of, 46 /. comparative liability to error, 46^. caution required, 46/^. credibility of, 204. rules of induction applicable to, 238. to prove corpus delicti, 274, 359 1, 359 w, 3592". to identify body, 289, 359/. force and effect of, 360. capital punishment, Austrian code, 367. considerations augmenting force of, 368, 422^. compared to a chain, 369. difficulty of fabricating, 373. illustrations of force of, 383. necessity of, 421. dangers inherent in, 422/". CLASSIFICATION of circumstantial evidence, 43, 46 w. of presumptions, 422 a. CLEAR PROOF, of circumstances, 238. 272 a. CLOTHING, to identify, 166, 202 d, 202 /*. INDEX. 431 (Numbers refer to pages.) COLT, JOHN C, trial of, 359/. COMPARISON of handwriting, 185. by experts, 185, 202 iv. by the jury, 202 w. by lay witnesses, 202 z. standard of, 202 a*. genuineness of standard, 202 a*. letterpress and photographic copies, 202 c*. People V. Molineux, 202 f*. 359^*. trial of Richard P. Robinson, 202^*, 202/1*. COMPLAINTS in rape, 207, 237 r. terms of, 237 s. CONCEALMENT, as indicating guilt, 107. of death in homicide, 118. of the dead body, 119, 292, 359 /, 359 z/. of another crime as motive, I54«. of illicit intercourse, 154//, 388. of marriage, 1 54 k. of misdoing as motive for false accusation, 207. of death of child, 215. lack of, to show innocence, 218. CONCLUSION, 420. CONCLUSIVE PRESUMPTIONS, exculpatory, 237^. CONCLUSIVE PROOF defined, 18 t-. CONCURRENCE of many circumstances, 368. CONDUCT, when arrested, I54<^**. during trial, 154^;^**. of injured party to show fact of crime, 207. to raise presumption of innocence, 211, 237 a*. See Acts and Declarations. in poisoning cases, 317. to prove corpus delicti, 359*5. CONFESSIONAL EVIDENCE, indirect, 91, i54t*. homicide to conceal, 388. INCONSISTENCY OF CIRCUMSTANCES, 379. INCULPATORY FACTS, must be incompatible with innocence, 262, 272^. INCULPATORY INDICATIONS, moral, 47. extrinsic and mechanical, 155. INDEPENDENT CIRCUMSTANCES, concurrence of, 368, 422^/. INDIFFERENCE, to show desire for another's death, 154 jr. INDIRECT CONFESSIONAL EVIDENCE, 91, 154^**. reliability of, 102. weight of, 1 54 b**. implied admissions of guilt, 154/**. silence, 1547**. INDEX. 439 (Numbers refer to pages.) INDIRECT EVIDENCE. Sec Ci-rcumstantial. INDUCTION, rules of, 238. INFANTICIDE, proof of corpus delicti, 352, 359 -f, 359/'*. presumptions, 215, 216, 355. pregnancy, 352, 359 z*. proof of birth alive, 353, 359 i*. motives, 355. casualties of birth, 356. proof of death, 359 e. cause of death, 359 /'*. sufificiency of evidence, 3597. INFERENCES FROM INFERENCES, 18^. INNOCENCE, presumption of, 204, 211, 237 <5. consciousness of, 211, 237 «*. facts proved must be wholly inconsistent with, 262, 272^. absolute impossibility of, 272g. INSANITY, expert testimony, 137. feigned, 154^**, burden of proving, 2j2p. preponderance required, 272 p. burden on state, 272 r. INSURANCE MONEY, as motive, 120, 359.^*. INTENTION TO COMMIT CRIME, declaration and acts indicative of, 55, 154 J", 154/. threats, 1 54 x. system to show intent, 154 /*. INTIMIDATION OF WITNESSES, 1 13, 154 ;«**, 359 /&. INTOXICATION, as a defence, 237 «. INTUITION, 3. J. JEALOUSY, as a motive for homicide, 154/^ 202^*. as motive for charging a crime, 206. JUDGMENT, the, defined, 2. JUSTIFICATION, proof of facts, 272 /. burden of proof, 272 ;;/. 440 INDEX. (Xiinibeis refer to pages.) L. LARCENY, other tliefts, 154^*, 154/*. recent possession of the stolen goods, 68, 154 J"*, 1547/*, 154 a**. proof of facts, 272 /. LAUNDRY MARKS, to identify property, 202 r. as a clue, 415. LEGAL PRESUMPTIONS, 23. LIGHT PRESUMPTIONS, 422 <5. LINKS IN CHAIN OF EVIDENCE, 272 «. LIQUOR SALES, 154 z*. M. MALICE, 154 X. declarations to prove, 154/. previous quarrels, 154 a*. proof of, 272 A. burden of proof, 272 n. MALPRACTICE, death ascribed to, 272s. MATLOCK WILL CASE, 402. MECHANICAL INCULPATORY INDICATIONS, 155. MINOR DISCREPANCIES, 379. instances of, 381. MISSPELT WORDS, to identify handwriting, 194, 402. to prove forgery, 409. MITIGATING CIRCUMSTANCES, proof of, 272/, 272 //z, 272^. MOLINEUX CASE, 202^*, 359^*. MORAL CERTAINTY, 8, 272/ MORAL EVIDENCE, 4, 18/. grounds of faith in, 360. MORAL INDICATIONS, inculpatory, 47. MOTIVE, not necessary to be proved, \8/. 154 f. of third person to procure murder, 1541^0 probative value, 154 <5. failure to prove, i^^d. other crimes to show, 154 /«, I54£'*. previous quarrels, 1^4. a*. INDEX. 441 (Numbers refer to pages.) MOTIVE, — Continued. system, to show, 154/*. of the prosecuting witness, 20S. absence of, 213, 237J. innocent, 237 2. evidence in rebuttal, 237 z. to rebut claim of accident. 3597. MOTIVES TO CRIME, 47, 154 «. lapse of time as affecting, \SA<^- desire for wealth, I54(/, 152*324. financial necessity, 154^, 331, 344, 359 w, 390. life insurance money, 154^', 120, 359^j^*. for arson, 154^. for robbery, 154/". for homicide, 154/^ concealing defalcations, 154^. not to commit a crime, 217. of third persons, 237 o. MURDER, other murders, 60. motives for, 154/". See Homicide. N. NATURAL PRESUMPTION.S, 23. NATURE OF THE ASSURANCE produced by evidence, 5, 18^. by circumstances, 18^. NEGATIVE EVIDENCE, weight of, 18^, 3S3. o. OBLITERATION OF EVIDENCE, 1 17. OMISSIONS IN ACCOUNTS OF WITNESSES, 382. OPINION, as to identity, 359/^. of experts, 141, 154/**. See Expert Testimony. See Handwriting. OPPORTUNITY, to commit crime, 65, 68, \^:\o*. presence at place of crime, 154/*, 359 r. to give poison, 297. 442 INDEX. (Numbers refer to pages.) ORDER OF EVIDENCE, i8^. ORTHOGRAPHY, to prove autlienticity of instruments, 194, 197. to prove forgery, 409. OTHER CRIMES, to show motive, 154 w. concealment of, I54«. proof of, in general, 154^. when not admissible, i^^d*. when admissible, 154^*. to prove identity, 202^^. former acts of poisoning, 321, 359 <^*. proof of — Molineux case, 359 i*. to rebut claim of accident, 359 ^. PARTICULAR ACTS, to show character, 237 /i*. PECULIARITIES of personal appearance, 161, 202a, 2020, 202 J*. PERJURY, other instances, 154/^*. number of witnesses required, 363. PERSONAL APPEARANCE, to identify, 161, 202 a. of accused, 154 a'*. PERSONAL PECULIARITIES, to identify dead body, 359/ 359 a-. PHOTOGRAPHS, used to identify, 165, 202 c. to identify dead body, 359^- POISON, possession of, I54«*, 296, 359/"*. POISONING CASES, proof of corpus delicti, 294, 359 2. possession of poison, 296, I54«*, 359/"*. opportunity to administer poison, 297. conduct of accused, 317. former attempts, 321. Donellan's case, 114, 324. Molineux case, 359 (^*. other cases, 359^* other like crimes, 60, 154 w, IS4'. against a class, 154^'. against third persons, I54_y. to commit a different crime, 1542". with a different weapon, 154.?. uncommunicated, 1545", 237^. time made, 154 a*. of deceased to show self-defence, 237^. of third persons, 237^. explaining away, 237 j/. to rebut claim of accident, 3S9J- TIME, verification of, 201, zozd*. TRACKS, to identify, 171-178, 202 //, 2027. TREASON, amount of evidence required, 363. u. UNCOMMUNICATED THREATS, 237 //, 154^. VALUE, in larceny, 272 /. VALUE OF CIRCUMSTANTIAL EVIDENCE, 34, 46^. VARIATIONS IN EVIDENCE OF CIRCUMSTANCES, 379. VENUE, proof of by circumstantial evidence, 46/. VERIFICATION OF DATES AND TIME, 195, 202 f*. by internal contents, 197. by type, paper, and ink, 202 c*. 448 INDEX. (Numbers refer to pages.) VIOLENT PRESUMPTIONS, 422 «. VOICE, to identify, 165, 202 c. VOLUNTARY SURRENDER, 218, 237 «*. W. WAGON TRACKS, to identify, 202/ WATER-MARK, to prove date, 196. WEAK WITNESS, 272^. WEAPONS, reputation for carrying, 237/ WEBSTER, PROF. JNO. W., trial of, 359 7/. WEIGHT, of evidence required, 18 _^. of circumstances, 422 «. 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